The University of Puget Sound

Department of Politics & Government

PG 338/Constitutional Law of U.S. National Security
Spring 2016

Professor Seth Weinberger

E-mail: sweinberger@pugetsound.edu
Phone: 879-2994
Office: WY 214
Office Hours: Mondays & Wednesdays 10:00 AM 11:30 AM and 1:00 PM 3:30 PM;
Tuesdays & Thursdays 10:00 AM 11:30 AM; Fridays by appointment.
Course Location: WY 204
Course Hours: Mondays and Wednesdays @ 2:00 PM 3:20 PM
Course Overview: The course will examine the constitutional law of U.S. national
security policy. It will explore classic constitutional issues, such as separation of powers,
war powers of the president and Congress, the role of international law, and treatymaking, as well as contemporary policy issues, such as the use of drones to kill American
citizens suspected of being members of international terrorist organizations, the
internment of suspected terrorists, and the question of the legal authority under which
the U.S. conducts military operations against ISIS.
The course begins with an introduction to the study of constitutional law, with particular
focus on the constitutional law of U.S. national security policy and foreign relations. We
consider some of the basic questions of the background of constitutional law, including
different methods of constitutional interpretation. The course then moves to examine
the roles of the president, Congress, and the courts in making, interpreting, and
implementing constitutional law in the pursuit of U.S. foreign policy. Next, we will focus
on several key issues and the attendant debates, including war powers, federalism, the
powers of treaty-making, and the role of international law.

We will conclude by considering some of the crucial constitutional issues of present-day

national security policy, including the use of force in Syria, the appropriate authorization
for the on-going war on terror, detention policy, and the targeted killing of U.S. citizens.

Class Policies:
Please, no eating in class. Drinks are allowed.
Please be on time for class.
Please, no laptops. Students with documented need for a laptop should speak to
the professor. However, students may use tablets (no keyboard, must lie flat) to
access Moodle readings in class.
If you have a physical, psychological, medical, or learning disability that may
impact your course work, please contact Peggy Perno, Director of the Office of
Accessibility and Accommodation, 105 Howarth, 253.879.3395. She will
determine with you what accommodations are necessary and appropriate. All
information and documentation is confidential.
Plagiarism will not be tolerated in any form or to any degree. If you are caught
plagiarizing any work or committing any other violation of academic integrity,
you may fail this course and will be reported to the University authorities. When
in doubt, cite! If there are any questions about what to or how to cite, please
ask! Please be sure to read the discussion of academic honesty in the Academic
Handbook which can be found at http://www.pugetsound.edu/studentlife/student-resources/student-handbook/academic-handbook/academicintegrity/. Ignorance of the concept or consequences of plagiarism and
academic integrity will not be accepted as an excuse.
Late work will not be accepted. All work is due at the beginning of class on the
due date (work handed in within 30 minutes following the beginning of class will
be penalized one full grade). Requests for extensions will only be granted in
exceptional circumstances, such as serious illnesses or family emergencies; if
such a circumstance occurs, contact me immediately!
Be sure to turn off your cell phone before class. If your phone rings, I will ask
you to leave class for the day. Any active use of a cell phone (texting, checking email, making a call, web surfing, etc.) will likely result in you failing the class
without additional warning.

Course Evaluation:
Graded evaluations in this course are:
1. Class participation: 20%
a. Students are expected to actively participate in class discussions
and to do so in a manner that reflects familiarity with the readings
and previous class discussions. Students should be prepared to be
called upon. Twice during the semester a student may obtain

immunity from being called upon by writing his or her name on

a slip of paper and giving it to the professor immediately prior to
the start of the days class. Only one student will be granted
immunity per class; first come, first serve!
2. Case briefs:
20%
a. Students will brief four or six cases over the course of the
semester. Students will sign up for cases to brief on the second
day of class. Briefs will be submitted to the entire class via
Moodle the night before the class period in which the case will be
discussed. Instructions on how to brief cases will be handed out
on the first day of class. Students may be called upon to present
their briefs to the class. Each student will brief at least two long
cases, and either two additional long cases or one long and three
short cases.
3. Midterm Exam:
25%
4. Final Exam:
35%
a. Both exams will be take-home and both will be open-note and
open-book.

Evaluation Standards:
While grading is necessarily a subjective process, I strongly believe that you have a right
to some insight into my expectations for your work, and how I will grade.
An A grade reflects evidence of original thinking and the ability to not just understand
the concepts and theories, but to be capable of critical analysis and synthesis of
seemingly unrelated ideas into an original argument. Furthermore, papers and exam
answers will be well-written and organized.
A B grade indicates a strong grasp of subject matter along with familiarity with the
literature. Arguments will be reflective of the material covered in the course, rather
than of original thought, and papers and exam answers will be well-written and
organized.
A C grade reflects a superficial grasp of the subject matter, with little demonstrated
personal understanding of the ideas and concepts of the course. Papers and exam
questions will be adequately written, but will not contain serious grammatical problems.
A D grade reflects a poor understanding of subject matter and a lack of effort. Papers
and exam questions will be seriously flawed and badly written.

A NOTE ABOUT THIS CLASS:

I take your education very seriouslyand I assume that you do the same, if not more so.
I put an enormous amount of effort into this class, from building the syllabus to planning
each class, to writing paper prompts to grading your work. I try to give you the very best
that I have to offer, and I expect nothing less from you in return. I expect that you give
this class your full attention and your best effort. I expect that you do the readings
before each class. I expect that you participate in class discussions. I expect that you ask
questions when you do not understand something. I expect that you come to my office
hours to further your comprehension of the material and to discuss your ideas in greater
depth than we can do in class. I expect that you do not wait until the night before a due
date to begin writing a paper. I expect that the work you hand in has been proofread,
looks professional, and represents the very best thinking that you can do.
If you do not expect to do these things, please do not take this class.

Texts To Be Purchased:
Foreign Relations Law: Cases and Materials, 5th edition, Curtis Bradley and Jack
Goldsmith (Aspen Publishers, 2015).
Restoring the Balance: War Powers in an Age of Terror, Seth Weinberger (Praeger Press,
2009).
Any readings not from the above books can be found on the course Moodle site or for
purchase as a course pack (338 pages) in the university bookstore.
Any student having financial difficulties purchasing the textbooks should speak with the
professor immediately.

Course Outline and Assigned Readings

1/20

Introduction to the Constitutional Law of U.S. National Security

1. Foreign Relations Law, Overview of International Law and
Institutions, xxv-xxvii.

1/25

The Constitutional Background

1. Foreign Relations Law, Historical and Conceptual Foundations,
pp. 3-14.
2. The Constitution of the United States of America (in Foreign
Relations Law, Appendix A).

1/27

U.S. Foreign Relations Authority

1. Foreign Relations Law, Historical and Conceptual Foundations,
pp. 14-43.
2. Dangerous Gamesmanship, Steve Coll, The New Yorker, April 27,
2015.
3. Yes, the U.S. Congress Has a Role in Foreign Affairs, Kevin Kosar,
Real Clear World, May 14, 2015.

2/1

Congresss National Security Powers

1. Foreign Relations Law, Congress and the President in Foreign
Relations, pp. 137-156.

2/3

The Presidents National Security Powers

1. Foreign Relations Law, Congress and the President in Foreign
Relations, pp. 157-176.
2. Obama Circumvents Laws with Signing Statements, a Tool He
Promised to Use Lightly, Karen Tumulty, Washington Post, June
2, 2014.
3. How Barack Obama is Expanding Presidential Powerand What
It Means for the Future, Andrew Prokop, Vox, September 9,
2014.

2/8

The Relationship Between Congress and the President

1. Foreign Relations Law, Congress and the President in Foreign
Relations, pp. 176-202. NOTE: pp. 182-187 should be replaced
with pp. 8-33 from the supplement; those pages are on the
Moodle page. Additionally, note 10 on p. 195 should be replaced
with pp. 33-38 from the supplement, also available on the
Moodle page.
2. The Supreme Court Endorses the Power of the President to Defy
Congress in Foreign Affairs, Julian Ku, opiniojuris.org, June 8,
2015.
3. Recognizable Power: The Supreme Court Deals a Blow to
Executive Authority, Michael Glennon, Foreign Affairs, June 23,
2015.

2/10

The Role of the Courts

1. Foreign Relations Law, Courts and Foreign Relations, pp. 47-89.
2. The Legal Power of Standing, William Baude, The New York
Times, May 14, 2015.

2/15

The Relationship Between the Courts and the President

1. Foreign Relations Law, Courts and Foreign Relations, pp. 121135.
2. When Judges Make Foreign Policy, Noah Feldman, New York
Times, September 28, 2008.

2/17

Presidential War Powers

1. Foreign Relations Law, War Powers, pp. 607-615 and 667-692.
2. Obama Admin. Channels Cheney, Claims Unlimited War Powers,
Eli Lake, The Daily Beast, May 21, 2014.

2/22

Congressional War Powers

1. Foreign Relations Law, War Powers, pp. 585-607 & 628-650.
2. Oversight Now, Bruce Ackerman, Foreign Policy, June 11, 2013.

2/24

War Powers in the War on Terror

1. Joint Resolution of Congress Authorizing the Use of Force
(September 18, 2001).
2. Authorization for Use of Military Force Against Iraq (October 22,
2002).
3. Restoring the Balance, Chapters 1 & 2.
4. Basic Principles of the War Power, Louis Fisher, Journal of
National Security Law and Policy, 5:319, 2012.

2/29

The Role of the States

1. Foreign Relations Law, States and Foreign Relations, pp. 203261.
2. Govt Sues to Throw Out Arizona Immigration Law, Bob Christie,
Yahoo News, July 6, 2010.

3/2

Treaties, Part I: Self-Execution, Last-In-Time Rule, and Separation of

Powers
1. Foreign Relations Law, Treaties and Other International
Agreements, pp. 265-287 & 319-340.
2. Tragic Isnt the Same as Illegal, Seth Weinberger, Tacoma News
Tribune, May 6, 2007.

3/7

Treaties, Part II: Federalism, Conditional Consent, and Executive

Agreements
1. Foreign Relations Law, Treaties and Other International
Agreements, pp. 288-319 & 367-389.
2. U.S. Seems Unlikely to Accept that Rights Treaty Applies to Its
Actions Abroad, Charlie Savage, The New York Times, March 6,
2014.

3/9

Treaties, Part III: Interpretation and Termination

1. Foreign Relations Law, Treaties and Other International
Agreements, pp. 340-367.

NO CLASS 3/14 OR 3/16 SPRING BREAK

3/21
REVIEW
MIDTERM EXAM WILL BE HANDED OUT AT THE END OF CLASS ON 3/21 AND WILL BE
DUE AT THE BEGINNING OF CLASS ON 3/28.
3/23

Customary International Law, Part I: CIL as U.S. Domestic Law

1. Foreign Relations Law, Customary International Law and
International Human Rights Legislation, pp. 391-408.
2. Contra CIA, Non-Self Executing Treaties Are Still the Supreme
Law of the Land, Deborah Pearlstein, opiniojuris.org, October 28,
2015.

3/28

Customary International Law, Part II: CIL and Human Rights

1. Foreign Relations Law, Customary International Law and
International Human Rights Legislation, pp. 408-488.
2. The Long Arm of International Law, Pierre Leval, Foreign Affairs,
March/April 2013.
3. In Shell Win, Ruling Limits Jurisdiction in Foreign Rights Cases,
Lawrence Hurley, Yahoo News, April 17, 2013.

3/30

Customary International Law, Part III: CIL and U.S. Domestic Law
1. Foreign Relations Law, Customary International Law and
International Human Rights Legislation, pp. 489-510.
2. The War of Law, Jon Kyl, Douglas Feith, and John Fonte, Foreign
Affairs, July/August 2013.
3. The Case for International Law, Harold Hongju Koh and Michael
Doyle, Foreign Affairs, November/December 2013.

4/4

The Extraterritoriality of U.S. Constitutional Law

1. Foreign Relations Law, International Crime, pp. 513-550.

4/6

The Law of Extradition and Abduction

1. Foreign Relations Law, International Crime, pp. 550-584.

4/11

Constitutional Issues of the War on Terror

1. Foreign Relations Law, Terrorism, pp. 693-705.
2. The Fourth Amendment Meets the War on Terror, Slate, June
17, 2002, Eugene Volokh.

3. Theres No Such Thing as Peacetime, Rosa Brooks, Foreign Policy,

March 13, 2015.
4. Law in the Time of Endless War, Robert Golan-Vilella, The
National Interest, August 17, 2015.
4/13

The Status and Detention of Enemy Combatants

1. Foreign Relations Law, Terrorism, 705-726 and 741-761.
2. Restoring the Balance, Chapter 5.
3. Congressional Cowardice, Not Military Detentions, is the Real
Threat to Civil Liberty, Geoffrey Manne and Seth Weinberger,
The Hill, December 16, 2011.
4. What Rights Should Dzokhar Tsarnaev Get and What Does It
Matter?, Glenn Greenwald, The Guardian, April 20, 2013.
5. Tsarnaev Will Not Be Tried as Enemy Combatant: What Does
That Mean?, Liz Goodwin, Yahoo News, April 22, 2013.

4/18

The Targeting of American Citizens

1. Foreign Relations Law, 790-806.
2. Memorandum for the Attorney General Re: Applicability of
Federal Criminal Laws and the Constitution to Contemplated
Lethal Operations Against Shaykh Anwar al-Awalaki, US
Department of Justice Office of Legal Counsel, July 16, 2010.
3. Lawfulness of a Lethal Operation Directed Against a U.S. Citizen
Who is a Senior Operational Leader of al-Qaida or an Associated
Force, U.S. Department of Justice.
4. Enemies Among Us: The Targeted Killing of American Members
of al Qaeda and the Need for Congressional Involvement, Seth
Weinberger, Georgetown Global Security Studies Review, May
2013.
5. Drone Courts: The Wrong Solution to the Wrong Problem, Steve
Vladeck, justsecurity.org, December 2, 2014.
6. A Response to Professor Vladeck, Jeffrey Brand, Amos Guiora,
and Steven Barela, justsecurity.org, December 16, 2014.

4/20

The Status of the AUMF

1. After the AUMF, Jennifer Daskal and Stephen Vladeck, Harvard
National Security Journal, 5: 2014.
2. Ending the Forever War: One Year After President Obamas NDU
Speech, Harold Hongju Koh, justsecurity.org, May 23, 2014.
3. A Tale of Two AUMFs, Robert Golan-Vilella, The National
Interest, September-October 2014.
4. Iraq, Obama, and the Future of War Powers, Robert GolanVilella, The National Interest, August 27, 2014.

5. Is It a War? An Armed Conflict? Why Words Matter in the U.S.

Fight vs, the Islamic State, Karen DeYoung, Washington Post,
October 13, 2014.
6. The Legal Framework for the United States Use of Military Force
Since 9/11, Stephen Preston, U.S. Department of Defense, April
10, 2015.
4/25

The Use of Force in Libya

1. Foreign Relations Law, War Powers, pp. 615-628.
2. Restoring the Balance, Chapter 3.
3. Authority to Use Military Force in Libya, White House Office of
Legal Counsel, April 1, 2011.
4. Questions for the Record Submitted to Legal Adviser Harold
Hongju Koh by Senator Richard Lugar, Senate Committee on
Foreign Relations, June 28, 2011.
5. Testimony of Peter Spiro before the U.S. Senate Committee on
Foreign Relations, June 28, 2011.
6. Testimony by Harold Hongju Koh before the U.S. Senate
Committee on Foreign Relations, June 28, 2011.
7. Testimony by Louis Fisher before the U.S. Senate Committee on
Foreign Relations, June 28, 2011.

4/27

The Use of Force in Syria

1. The Lawful Way to Fight the Islamic State, Harold Hongju Koh,
Politico, August 29, 2014.
2. Three Reasons Why Obama Will Not (and Should Not) Seek
Congressional Okay for ISIL Strikes, Peter Spiro, opiniojuris.org,
September 8, 2014.
3. Does Obama Have the Authority to Strike in Syria? Dan
Lamothe, Washington Post, September 10, 2014.
4. Obamas Betrayal of the Constitution, Bruce Ackerman, New
York Times, September 11, 2014.
5. Obama Already Has Authority to Fight Islamic State, Cass
Sunstein, Bloomberg View, September 15, 2014.
6. Dont Take the AUMF Bait, Seth Weinberger, The Hill, February
18, 2015.
7. Ever-Expanding Theories of Unilateral Article II War Power, Jack
Goldsmith, lawfareblog.com, September 15, 2015.

5/2

Conclusion: The Scope of Presidential Power in the 21st Century

1. Restoring the Balance, Chapter 6.
2. Dismantling the Imperial Presidency, Aziz Huq, The Nation,
January 12, 2009.
3. The Need to Roll Back Presidential Power Grabs, Arlen Specter,
New York Review of Books, May 14, 2009.
4. Not a Suicide Pact: The Constitution in a Time of National
Emergency, Richard Posner, Conclusion.

5/4
REVIEW
THE FINAL EXAM WILL BE HANDED OUT AT THE END OF CLASS ON 5/4 AND WILL BE
DUE AT 4:00 PM ON FRIDAY, 5/13