FINAL EXAMINATION

2003 SUMMER SESSION

PROFESSOR R. J. GRAVING

NATIONAL SECURITY LAW

 

This exam is open book, open materials.

 

PROBLEM I

 

1. With exemplary brevity give an example in which U.S. prescriptive jurisdiction exists but U.S. adjudicatory jurisdiction does not exist.

 

2. The Foreign Intelligence Surveillance Act as amended and judicially interpreted ("FISA") no longer requires for an authorized warrantless search that the primary purpose of the surveillance be the collection of intelligence information (as distinguished, say, from law enforcement). How did this come about?

 

3. Identify a case in the casebook that supports Prof. Lowenfeld's observation that the Exclusionary Rule applies to things but not to persons.

 

4. (a) Can an executive agreement entered into on the sole basis of the president's constitutional authority trump a state law? Yes or No. (b) Can it trump a prior federal law? Yes or No. '

 

5. Identify a major ("perfect") U.S. war in which U.S. forces commenced military action against a foe without prior Congressional authorization of any kind.

 

6. Why would FISA have been inapplicable for surveillance of Timothy McVeigh before the Oklahoma City bombing or of the Unabomber?

 

7. In what famous U.S. Supreme Court case can one find the criteria for the judiciary's invoking the political question doctrine?

 

8. President Nixon vetoed the War Powers Resolution of 1973 ("WPR") as "unconstitutional" but Congress overrode his veto. No president since Nixon has conceded the WPR's constitutionality. What two provisions did Nixon find constitutionally objectionable?

 

9. On what "narrow" basis did (then) Justice Rehnquist in Dames & Moore v.

Regan (p. 115 in the casebook) uphold the President's authority to suspend claims pending in American courts against Iranian defendants (as required by the Algiers Accords and U.S. Executive Order)?

10. What is the standard of judicial review under the Freedom of Information Act when the government claims an exemption for national security reasons?

 

11. Briefly, on what grounds did Lord Goldsmith, Attorney General of the United Kingdom, base his opinion that "coalition" use of force against Iraq in 2003 was legally justified?

 

12. Article VI of the Constitution provides that all treaties made under the authority of the United States shall be the supreme law of the land. Chief Justice John Marshall enunciated a "gloss" on this language to exclude certain treaties or treaty provisions that are not . What word or words should fill in the blank?

 

PROBLEM II

 

There are some who suggest that although the Executive lost the specific battle of The Steel Seizure Case (p. 31 in the casebook) it actually won the "war" on establishing presidential authority to act in emergency situations despite the absence of statutory or express constitutional authority. Prepare an orderly and analytical outline of the points that would be used in support of that thesis, with any appropriate references to the written opinions of the various Justices.

 

PROBLEM III

 

There are some who suggest that although the Executive lost the specific battle in New York Times Co. v. United States (p. 1031 in the casebook) it actually won the "war" on the constitutional validity of prior restraint of the press in appropriate circumstances.  Prepare an orderly and analytical outline of the points that would be used in support of that thesis, with any appropriate references to the written opinions of the various Justices.

PROBLEM IV

 

Comment on the following (from The Wall Street Journal), specifying what national and international "approvals", if any, might be required and referring to any material in the casebook or otherwise that you think especially relevant. Assume no news developments since July 11,2003, the date of the article.

 

COMMENTARY Liberate Liberia

By JOSEPH SIEGLE

 

This week in South Africa President Bush told reporters that he will work with the United Nations and African leaders to "see to it that Mr. Taylor leaves office so there can be a peaceful transition in Liberia." The president was; of course, referring to Charles Taylor, the Liberian president-cum-war-criminal who refuses to stand down. Yet despite his strong words, Mr. Bush continues to sidestep the question of whether the u.s. will intervene in Liberia.

 

Decisions to deploy U.S. troops are always a serious matter and must ultimately be taken, on a case-by-case basis. In Liberia, the Bush administration is in a unique position to make a profound difference for the entire West African region at relatively low cost and with far-reaching political benefits for the United States. Sending U.S. forces at the head of an international peacekeeping mission is the right thing to do and the president should authorize deployment.

 

***

 

Troop deployments are typically justified on the basis of U.S. economic or security interests. In Liberia's case these are minor, though European Union and U.N. investigations link Taylor to al Qaeda operatives through diamond smuggling. Liberia also operates the world's second leading maritime registry, providing easy cover to groups transporting contraband.

 

But the impetus for intervening in Liberia is largely humanitarian. Founded in 1847 by freed American slaves, the country has 'been embroiled in a bloody civil war for the past 14 years. More than 200,0000 Liberians have perished since Taylor's initial Christmas Eve rebellion in 1989.

Many thousands more are at risk -- from violence, food shortages and disease. More than a million Liberians are refugees or displaced. Another 150,000 Sierra Leoneans were killed when Taylor took the Liberian conflict over the border and threw that country into turmoil. Maimings, rape, and the use of child soldiers have been widespread.

 

***

 

Lost in much of the discussion about Liberia is the ripeness of the moment for resolving this conflict. Fighting' is now largely confined to the seaport capital, Monrovia. A cease-fire is generally holding, obviating the need to deploy troops under fire. All sides of the conflict have welcomed U.S. intervention and accept the desirability of a negotiated settlement. There is widespread war-weariness within the population and among combatants. Liberians from all factions and ethnic backgrounds revere America. Close cooperation and support from all of Liberia's neighbors -- Sierra Leone, Guinea and Ivory Coast -- would greatly facilitate logistics and the interdiction of new arms shipments into. Liberia. The 15-nation Economic Community of West African States has already asked the U.S. to intervene and has offered to commit 3,000 troops of its own. A U.N. Security Council resolution authorizing the use of force would be forthcoming.

Thus, as far as interventions go, many of the pieces for resolving this one are. already in place. The prospects for success in Liberia are good and the risks relatively low. In other words, Liberia is not Somalia.

 

Unfortunately, these favorable circumstances for effective intervention will not stay in place indefinitely. Charles Taylor has many tricks up his sleeve and will continue to try to confuse matters. Moreover, as previous stalemates in this conflict have shown, rebel forces can fragment and turn against one another, setting the conflict ablaze yet again. The longer President Bush equivocates, the more complex the task is likely to become.

 

For these reasons, President Bush should immediately deploy 2,000 marines to Monrovia whether or not Charles Taylor has departed. Indeed, while Taylor's statements that he will not leave until U.S. troops arrive are intended to buy him more time, this would allow for a deployment into a relatively stable setting. If Taylor lingers after the U.S. troops arrive, he should be arrested and turned over to the special war crimes court in Sierra Leone. (This will give him further incentive to depart for Nigeria sooner rather than later).

 

The initial objective of the intervention force would be to establish a presence in Monrovia. Once the capital has been secured, U.S. and international forces would fan out through the rest of this small country. The intervention force should proceed to disarm and demobilize all militias in Monrovia and the country at large. (The procedures for this should already be under discussion with the political leaderships of the competing factions). Monetary stipends and food rations should be made available to all militia fighters who turn in their weapons. As fighting is the only skill many of these young men possess, this step in the intervention is essential for facilitating greater cooperation and long-term security.

PROBLEM V

 

Comment on the following, referring to any materials in the casebook or otherwise that you think especially relevant. Assume no news developments since July 13,2003, the date of the article.

 

The New.York Times nytimes.corn

 

July 13, 2003

 

When Frontier Justice Becomes Foreign Policy

 

By THOMAS POWERS

 

American intelligence organizations and military forces, once forbidden from attempts to assassinate foreign leaders by the executive orders of two recent presidents, have now embarked on an open, all-out effort to find and kill Saddam Hussein in a campaign with no precedents in American history.

 

***

 

The campaign to kill him, frankly admitted and discussed by high officials in the White House, Defense Department and Central Intelligence Agency, has committed the United States for the first time to public, personalized, open-ended warfare in the classic mode of Middle Eastern violence - an eye for an eye, a life for a life.

 

American officials in the White House and Iraq have argued that Mr. Hussein's survival encourages resistance, and killing him is therefore a legitimate act of war. But the United States has never before openly marked foreign leaders for killing. Treating it as routine could level the moral playing field and invite retaliation in kind, and makes every American official both here and in the Middle East a target of opportunity.

 

Realists may scoff that war is war and that things have always been this way, but in fact personalized killing has a way of deepening the bitterness of war without bringing conflict closer to resolution. In April 1986 President Reagan authorized an air raid on the home of Col. Muammar el-Qaddafi of Libya that spared him but killed his daughter. The Reagan administration never acknowledged that Colonel Qaddafi, personally, was the target, nor did it publicly speculate two years later that Libya's bombing of an American jetliner over Lockerbie, Scotland, killing 270 people, was Colonel Qaddafi's revenge for the death of his daughter. But the administration got the message: after Lockerbie, Washington relied on legal action to settle the score.

 

It is impossible to know how, or if, Mr. Hussein's supporters will find a way to retaliate for the American campaign to kill the deposed Iraqi leader, but that effort inevitably reopens a long-simmering American argument over assassination, never embraced openly in so many words but never repudiated once and for all. Despite much tough talk of killing enemies since the Sept. 11 attacks, the Bush administration still shrinks from using the word assassination, and much of the public continues to oppose it as both dangerous and wrong -- dangerous because it commits the United States to a campaign of murder and counter murder, and wrong because hunting people down, however it plays in the movies, excuses murder by calling it something else.

 

Mr. Hussein himself doubtless understands the first argument, since the man leading the effort to kill him now -- President Bush -- is the son of a man Mr. Hussein tried to have murdered a decade ago.

 

In the middle of the last century, at the height of the cold war, the United States often wished, sometimes planned and occasionally took concrete steps to kill foreign leaders. The best known of its targets was Fidel Castro.

 

***

 

Executive orders banning assassination issued by Presidents Gerald R. Ford and Ronald Reagan, prompted by public dismay over the poisoned cigars and exploding seashells intended for Mr. Castro, have never been formally revoked. Mr. Reagan's order flatly states that "no person employed by or acting on behalf of the United States government shall engage in, or conspire to engage in, assassination. "

 

***

 

Can it still be called assassination if it is carried out in wartime? Does a White House decision to attack Iraq make it "a war," and thereby turn Mr. Hussein into a legitimate target? Old hands in the intelligence business say that legal questions raised by the deliberate killing of named individuals, the core definition of assassination, are less important than practical matters.

 

In moments of heat during the cold war, many enemies of the United States were suggested as targets of assassination. Wise heads often urged second thoughts because an assassin, once the deed had been committed, would be in a position to extort blackmail ~ or worse, suffer an attack of conscience and go to the newspapers.

 

Two arguments were regularly cited by those who counseled restraint. The first was implicit in the unwritten cold war rule against killing intelligence officers or political leaders: two can play that game, and once started it is hard to control, as Americans learned in the Lockerbie bombing. Mr. Hussein is not the only figure in danger of sudden death in Iraq at the moment, and it is a tossup who is in greater danger -- Mr. Hussein or Paul Bremer?

 

But the final argument against assassination, often noted by American intelligence officers, was the most practical -- you might get rid of public enemy No.1, but who would take his place? Mr. Bremer has cited the survival of Mr. Hussein as a kind of psychological barrier, scaring off some Iraqis who might be willing to work with the Americans, and inspiring others to go on fighting.

 

But how can Washington be sure that killing Mr. Hussein will be a change for the better? Success might only clear the path for another Iraqi leader, just as intransigent but free of Mr. Hussein's terrible burden of decades of crime against his own people.

 

Like most questions in wartime, this one is impossible to answer in advance. The administration clearly thinks there is more to be gained than lost, and the public, so far, appears content to wait and see.

 

-- END OF EXAMINATION --