National Security Law

Catalog description

This course examines the current constitutional and statutory framework guiding government institutions tasked with national security responsibilities, as well as their historical roots. It covers such themes as the allocation and interplay of power between the Congress and the President on matters of war making, emergency powers, intelligence gathering, targeted killing, indefinite detention, Military Commissions, and the looming prospect of a statutory schema for addressing the rising threat of domestic terrorism. Conventional wisdom overweighs 9/11 and its aftermath as the anchor point for examination of this field of law. In fact, and as the course explores, its roots must be traced from 19th century conflicts with native peoples to slavery and the Civil War, and then coursing through industrial and social strife in the early 20th century, Cold War anti-Communism and the 1947 National Security Act, to the ongoing War on Terror - foreign in the wake of 9/11 to which paralleling concerns of domestic forms now proliferate, with each draw on organizing tenets involving the othering of minorities. To the extent that "national security law," can be said to cogently exist as a discreet field, it operates from the underpinnings of a complex mix of legal and political theory under the penumbra of Emergency Powers or, more classically, The State of Exception made famous by Weimar jurist and political theorist Carl Schmitt, with antecedents in the work of John Locke and Thomas Hobbes. The mix is inextricably intertwined with U.S. foreign policy concerns and their historical fluctuations. These theoretical considerations therefore frame and inform the course's interrogation of the legal structures and doctrines. It also engages with the topic of how ideas of membership and belonging have shaped our judgments as a world power nation-state about who and what counts as an external threat.