National Security Law Syllabus - Virginia

National Security Law

Syllabus and

Assignments

Professor John Norton Moore University of Virginia School of Law

Fall 2018

Class Website: http://www.faculty.virginia.edu/jnmoore/nslcourse

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“The justest dispositions possible in ourselves will not secure us against [war].

It would be necessary that all other nations were just also. Justice indeed on our part

will save us from those wars which would have been produced by a contrary

disposition. But how to prevent those produced by the wrongs of other nations?

By putting ourselves in a condition to punish them. Weakness provokes insult and

injury, while a condition to punish it often prevents it.”

Thomas Jefferson

from THE PAPERS OF THOMAS JEFFERSON, Letter to John Jay, August 23, 1785

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National Security Law Syllabus

(Assignments begin on page 6)

Professor John Norton Moore Fall 2018 Monday and Wednesday, 11:30am-12:50 pm University of Virginia Room: SL 298 School of Law

Date Topics

August 29 I. Introduction and Context

A. Goal Clarification: What is National Security?

B. Principal Theories of International Relations: How well do they work?

C. The Causes of War: The State of Human Knowledge

September 3 D. Traditional Approaches to Preventing War

- Diplomacy- Balance of Power- Deterrence- Collective Security- Arms Control- World Federalist- Functionalism and Other

September 5 E. The “Democratic Peace,” “Incentive Theory,” and Newer Approaches

F. “Restrictivism” or “The Minimalist Tradition”: Good Motives and Bad Resultsin a Non-Debate about Law and Deterrence

September 10 II. The International Law of Conflict Management

A. Historical Development of the International Law of Conflict Management

September 12 B. Institutional Modes of Conflict Management

- The United Nations System: Goals, Structure, and Legal Framework- The Role of the Security Council- Peacekeeping and Peace-Enforcement- Strengthening the United Nations System: Incremental and Utopian

Models

September 17 C. Lawfulness of the Use of Force in International Relations: Jus ad Bellum (Pt.I)

1. The Prohibition of War as an Instrument of National Policy: TheComplementary Norms of Aggression and Defense

Moore: National Security Law, Fall 2018, UVa Date Topics

2

2. Regional Arrangements and Relevant Provisions of the Rio Treaty and the Revised Charter of the Organization of American States (OAS)

3. Low-Intensity-Conflict, Intervention, Anticipatory Defense, and Other

Continuing Problems September 19 Jus ad Bellum Part II September 24 4. Illustrative Case Study: The Indo-China War September 26 5. Illustrative Case Study: The Secret War in Central America On Your Own Review the assigned readings for this section on your own:

6. Illustrative Case Study: The Grenada Mission October 1 7. The Gulf War (1990-91): An Illustrative Case Study of Security

Council Action October 3 8. Case Studies in United Nations Peacekeeping and Peace-Enforcing:

Yugoslavia (Bosnia-Herzegovina, Croatia, Serbia, Kosovo), Somalia, Haiti, and Rwanda.

9. The September 11 attack, the response in Afghanistan, and the War on

Terrorism

*** FALL BREAK October 8-10 No classes meet *** October 15 10. The War in Iraq

• Legal & Policy Issues on the War in Iraq: A Debate (Prof.

Moore vs. Prof. Turner) October 17 D. Human Rights for Contexts of Violence: Norms Concerning the Conduct of

Hostilities: Jus in Bello 1. Theoretical and Historical Overview

- General Principles - The Law of The Hague, the Law of Geneva, and the 1977 Protocols - Applicable Conventions


3

Jus in Bello Guest Speaker 10/17 & 10/22: Col. David Graham

Center for National Security Law October 22 2. Conduct of Hostilities and Protection of Non-Combatants: Targeting,

Weapons Systems, Belligerent Occupation, and the Law of Neutrality

3. Procedures for Implementation and Enforcement (including Reprisals and Protecting Powers)

Guest Speaker: Col. David Graham

Center for National Security Law October 24 E. War Crimes and the Nuremberg Principles

F. Illustrative Case Studies: War Crimes in the Gulf War and in the Yugoslav (Bosnia-Herzegovina, Croatia, Serbia) Conflict G. The International Criminal Court

October 29 H. International Terrorism and Its Control: The Events of September 11 and

Their Aftermath

I. Domestic Terrorism October 31 III. Strategic Stability and Arms Control & American Security Doctrine

A. Theoretical and Historical Overview

B. Nuclear Weapons and Their Effects

November 5 C. Strategic Arms Limitation Talks (SALT I & II) and Strategic Arms Reduction

Talks (START I, II, & III) and Resulting Treaties and Agreements

D. Mutual Balanced Force Reduction/Conventional Armed Forces in Europe Talks (MBFR/CFE) and Theater Nuclear Force/Intermediate-Range Nuclear Force Talks (TNF/INF) and Resulting Treaties

E. Contemporary Issues: Nonproliferation and Counterproliferation of Nuclear, Chemical, and Biological Weapons and Ballistic Missiles

- Non-Proliferation Treaty (NPT), July 1, 1968 and recent review


4

conference - Chemical Weapons Convention (CWC), January 13, 1993

- Biological Weapons Convention, April 1972 - Missile Technology Control Regime (MTCR) - Comprehensive Test Ban Treaty (CTBT)

1993-2006 North Korean Violation of NPT as a Case Study

F. United States-Russian Strategic Cooperation

G. The Debate about National Missile Defense

November 7 IV. National Institutional Framework

A. The Constitutional Framework for the Division of National Security Powers Between Congress and the President

1. Historical Background and General Principles

November 12 2. The Authority of Congress and the President to Conclude, Interpret,

and Terminate Agreements Relating to National Security 3. The “Dual vs. Unitary” Theory Debate Arising from the “Broad-

Narrow” Issue in Interpreting the Anti-Ballistic Missile (ABM) Treaty November 14 4. The Authority of Congress and the President to Use the Armed Forces 5. The War Powers Resolution

Guest Speaker:

Robert F. Turner Associate Director, Center for National Security Law

November 19 B. The National Security Process

*** THANKSGIVING BREAK November 21-23 No classes meet *** November 26 C. Secrecy, Access to Information, and the Classification System D. Intelligence and Counterintelligence


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November 28 V. Individual Rights and Accountability

A. Freedom of Expression, Protection of Privacy, and National Security

1. The First Amendment of the United States Constitution and National Security

2. The Fourth Amendment of the United States Constitution and National Security

B. Detainee Rights On Your Own Review the suggested readings for this section on your own:

C. National Security Violations December 3 VI. Other National Legal Issues

A. Homeland Security

B. Law and Warfare in the Cyber Domain On Your Own Review the suggested readings for this section on your own:

C. The Environment and National Security D. Security Aspects of Oceans Law

December 5 VII. Economic Sanctions and Export Controls

A. An Introduction to Economic Sanctions B. An Introduction to Export Controls Guest Speaker: Richard Newcomb, Esq.

Former Director, Office of Foreign Assets Control, U.S. Department of the Treasury

Classes end December 5, 2018

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National Security Law Assignments

Professor John Norton Moore Fall 2018 Monday and Wednesday, 11:30 am-12:50 pm University of Virginia Room: SL 298 School of Law

Texts for Reading Assignments Casebook: NATIONAL SECURITY LAW & POLICY, 3RD Ed. (John Norton Moore, Guy B.

Roberts, and Robert F. Turner eds., 2015). Available at the law school bookstore. [required purchase]

Documents: NATIONAL SECURITY LAW DOCUMENTS, 2ND Ed. (John Norton Moore, Guy B.

Roberts, and Robert F. Turner eds., 2006). Available at the law school bookstore. [optional purchase, copies on reserve]

UN Charter: CHARTER OF THE UNITED NATIONS. Available at the law school bookstore. Also available online at http://www.un.org/en/charter-united-nations/ Course Reader: Two volumes of selected readings compiled by Professor Moore for the course.

Copies available at the Copy Center (they are also on course website). Optional Readings: Some readings throughout the syllabus are marked “optional.” These

readings provide additional background information and can be used to get a more comprehensive understanding of the topic. They are not required, like all other readings, but are recommended for anyone interested in additional reading on a subject.

CLASS WEBSITE: http:faculty.virginia.edu/jnmoore/nslcourse Date Topics August 29 I. Introduction and Context

A. Goal Clarification: What is National Security?

B. Principal Theories of International Relations: How well do they work?

Casebook: 3-18 (A. Arend, ch. 1)

C. The Causes of War: The State of Human Knowledge

Readings, On Reserve:

#1 B.W. TUCHMAN, THE GUNS OF AUGUST 9-11, 17-27 (1962; anniversary ed. 1998)

Date Topics

7

Moore: National Security Law, Fall 2018, UVa

September 3 D. Traditional Approaches to Preventing War

- Diplomacy - Balance of Power - Deterrence - Collective Security - Arms Control - World Federalist - Functionalism and Other

Casebook:

19-32 (J.N. Moore, ch. 2)

Course Reader, Volume 1: 1-17 R. J. Rummel, “Power Kills; Absolute Power Kills Absolutely” (October 20, 1991)

September 5 E. The “Democratic Peace,” “Incentive Theory,” and Newer Approaches Readings, On Reserve:

#2 B. RUSSETT AND J. ONEAL, TRIANGULATING PEACE, 43-79 (2000)

Documents: 4:11 Document of the Copenhagen Meeting of the

Conference on the Human Dimension of the CSCE, June 1990 [http://www.osce.org/odihr/elections/14304] [skim]


#3 JOHN NORTON MOORE, SOLVING THE WAR PUZZLE, xvii-xxvi, 1-8, 145 (2004)

F. “Restrictivism” or “The Minimalist Tradition”: Good Motives and Bad Results in a Non-Debate About Law and Deterrence

Optional Readings for September 5: Documents: 3:55 Conference on Security and Co-Operation in Europe: Final Act (CSCE),

1975 [http://www.osce.org/mc/39501] 3:56 Charter of Paris for a New Europe, signed Nov. 21, 1990

[http://www.osce.org/node/39516] 3:57 Organization of American States (OAS) General Assembly Resolution

1080, U.S. Department of State Dispatch, Oct. 7, 1991

Date Topics

8


Readings, On Reserve: #4 DONALD KAGEN, ON THE ORIGINS OF WAR AND THE

PRESERVATION OF PEACE 566-74 (1995) A video of Professor Moore’s presentation on “Solving the War Puzzle” at the Library of Congress is available at http://faculty.virginia.edu/jnmoore/pdf/solvingwarpuzzle.pdf

September 10 II. The International Law of Conflict Management

A. Historical Development of the International Law of Conflict Management

Casebook: 35-73 (J.N. Moore, ch. 3)

Documents: 2:12 Kellogg-Briand Pact, 1928

[http://avalon.law.yale.edu/20th_century/kbpact.asp] September 12 B. Institutional Modes of Conflict Management

- The United Nations System: Goals, Structure, and Legal Framework - The Role of the Security Council

- Peacekeeping and Peace-Enforcement - Strengthening the United Nations System: Incremental and Utopian Models Casebook:

209-264 & 285-316 (R. Higgins,D. Sarooshi, & P. Webb ch. 5) Online:

e-Guide to the United Nations Departments of Peacekeeping Operations and Field Support: A Resource for New Staff at Headquarters. Prepared in January 2015 and available at http://dag.un.org/handle/11176/89593 pages 1-15 and 37-88 [Skim]

Documents: 2:3 United Nations Charter, 1945 [Skim] 2:4 Uniting for Peace Resolution, 1950 [Skim]

September 17 C. Lawfulness of the Use of Force in International Relations: Jus ad Bellum September 19

1. The Prohibition of War as an Instrument of National Policy: The Complementary Norms of Aggression and Defense

Date Topics

9



2. Regional Arrangements and Relevant Provisions of the Rio Treaty and the Revised Charter of the Organization of American States (OAS)

Casebook:

100-105 (J.N. Moore, ch. 4) Documents:

2:6 Inter-American Treaty of Reciprocal Assistance (Rio Treaty), 1947 [Skim]

2:8 Charter of the Organization of American States (Revised) [Skim] 2:15 Definition of Aggression Resolution, 1973 [Skim]

3. Low-Intensity Conflict, Intervention, Anticipatory Defense and Other Continuing Problems

Casebook:

123-133, 138-140, 178-180 (J.N. Moore, ch. 4) Optional Readings for September 17-19: Readings, On Reserve:

#5 John Norton Moore, Jus ad Bellum Before the International Court of Justice, 52 VA. J. INT’L LAW 903, 2012. Course Reader, v. 1:

Excerpts from cases heard at the International Court of Justice— 101(insert A) Corfu Channel Case (U.K. of Great Britain and Northern Ireland v. Albania), 1949 I.C.J. (April 9) 101(insert B) Case Concerning Oil Platforms (Islamic Republic of Iran v. U.S.A.), 2003 I.C.J. (November 6) 101(insert C) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (request for advisory opinion) 2004 I.C.J. (July 9) Course Reader, v. 1: 101(insert D) Keith Petty, “Veiled Impunity: Iran’s Use of Non-State Armed Groups,” 36 Denv. J. Int'l L. & Pol'y 191-219 (Spring 2008) September 24 4. Illustrative Case Study: The Indo-China War

Date Topics

10



Course Reader, v. 1: 102-113 R.F. Turner, Myths and Realities in the Vietnam

Debate, in THE VIETNAM DEBATE 37-59 (Moore ed., 1990)

September 26 5. Illustrative Case Study: The Secret War in Central America Casebook:

140-154 (J.N. Moore, ch. 4) Course Reader, v. 1:

114-154“The Inadmissibility of the Application,” Oral Argument of John N. Moore on Behalf of the United States in the Case of Nicaragua v. United States, October 16, 1984

155 Text of the Letter from Roger Miranda, Nicaraguan defector, to Professor John Norton Moore (1991) [the Miranda letter is reprinted in “Remarks by John Norton Moore” on the panel “Changing Role of the International Court of Justice,” 85 AM. SOCIETY INT’L L. PROCEEDINGS 31, 35-38 (1991)]

On Your Own Review the assigned readings for this section on your own:

6. Illustrative Case Study: The Grenada Mission


October 1 7. The Gulf War: An Illustrative Case Study of Security Council Action

Documents: 2:17 UN Security Council Resolution 678 (1990) 2:18 UN Security Council Resolution 687 (1991)


#6 O. Schachter, United Nations Law in the Gulf Conflict, 85 AM. J. INT’L. L. 452-73 (1991)

October 3 8. Case Studies in United Nations Peacekeeping and Peace-Enforcing:

Yugoslavia (Bosnia-Herzegovina, Croatia, Serbia), Somalia, Haiti, and Rwanda

*NOTE: Because of the multiplicity of readings for this date, first review those under “9. The September 11 attack, the response in Afghanistan, and the War on Terrorism,” and “10. The War in

Date Topics

11


Iraq.” After this, you are required to read General and choose at least two of the six country case studies below based on your interest. The remaining four are optional.

Course Reader, v. 1:

General: President Obama’s speech the UN General Assembly

Insert E on Sept. 24, 2013 – https://www.washingtonpost.com/politics/transcript- president-obamas-speech-at-the-un-general- assembly/2013/09/24/64d5b386-2522-11e3-ad0d- b7c8d2a594b9_print.html [Skim]

163-66 Richard Schifter, Special Assistant to the President and Counselor, National Security Council, “Is There a Clinton Doctrine?”—Remarks at the American Enterprise Institute Symposium, Nov. 2, 1993

167-74 The Clinton Administration’s Policy on Reforming Multilateral Peace Operations, May 1994 (summarizing Presidential Decision Directive of May 3, 1994)

Libya: Insert F UN Security Council Resolution 1973 (2011)

[http://www.un.org/en/ga/search/view_doc.asp?symbol= S/RES/1973(2011)] Insert G OLC Opinion, Authority to Use Military Force in Libya, Apr. 1, 2011 http://www.justice.gov/sites/default/files/ olc/opinions/2011/04/31/authority-military-use-in- libya.pdf) Insert H Testimony by Legal Adviser Harold Koh, U.S. Department of State, on Libya and War Powers, June 28, 2011 (http://www.state.gov/s/l/releases/remarks/ 167250.htm)

Yugoslavia:

181-94 Selected UN Security Council Resolutions: 713 (1991), 743 (1992), 781 (1992), 859 (1993), 913 (1994)

195-96 Amendment to H.R. 4301, as reported, offered by Mr. McCloskey, Mr. Gilman, Mr. Bonior, Title XII - Bosnia

and Herzegovina Self-Defense 197-202Administration Talking Points Regarding

McCloskey/Gilman Amendment Somalia: 203-24 Selected UN Security Council Resolutions: 733 (1992),

794 (1992), 814 (1993), 837 (1993), 897 (1994), 923 (1994)

225-30 skim Letter Dated 29 November 1992 from the

Date Topics

12


Secretary-General Addressed to the President of the Security Council, U.N. Doc. S/24868 (1992)

231-64 skim Report to the Congress on US Policy in Somalia, October 13, 1993

October 3 (cont’d) Haiti: 265-66 Organization of American States (OAS) Resolutions:

MRE/RES. 1/91 (1991), MRE/RES. 2/91 (1991), reprinted in U.S. DEPT OF STATE DISPATCH, Oct. 14, 1991, at 760-61

267 UN General Assembly Res. 46/7 (1991) 268-83 UN Security Council Res. 841 (1993), 917 (1994), 933

(1994), 940 (1994) 284-88 skim Report of the Secretary-General on “The Situation

of Democracy and Human Rights in Haiti,” U.N. Doc. A/47/975 (S/26063) (July 12, 1993) [includes Governors Island Agreement, July 3, 1993]

Rwanda: 289-305UN Security Council Res. 912 (1994), 918 (1994), 925

(1994), 929 (1994), 935 (1994) 306-08 Annex: Letter dated 1 July 1994 from the Permanent

Representative of France to the United Nations addressed to the Secretary-General, in Letter dated 2 July 1994 from the Secretary-General addressed to the President of the Security Council, U.N. Doc. S/1994/798 (July 6, 1994)

309-41 Letter dated 1 October 1994 from the Secretary-General addressed to the President of the Security Council with

Annex Preliminary Report of the Independent Commission of Experts Established in Accordance with Security Council Resolution 935 (1994) S/1994/1125

Kosovo: 349-51 UN Security Council Resolution 1160 adopted on March

31, 1998 352-54 UN Security Council Resolution 1199 adopted on

September 23, 1998 355-56 Understanding the Rambouillet Accords: US Dept. of State, Bureau of European Affairs, Fact Sheet: March 1, 1999 357-59 Address to the Nation: March 24, 1999, President William Clinton 360-61 US and NATO Objectives and Interests in Kosovo: US

Department of State, Fact Sheet: March 26, 1999 362 Letter from the President to the Speaker of the House of

Representatives and the President of the Senate: April 5, 1999

363 Letter from the President to the Speaker of the House of

Date Topics

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Representatives and the President of the Senate: April 7, 1999

364-75 Kosovo Chronology: Department of State, May 21, 1999 376 Letter from the President to the Speaker of the House of

Representatives and the President of the Senate: May 26, 1999

377-78 Erasing History: Ethnic Cleansing in Kosovo: US Department of State Report, May, 1999

379-80 Indictment of Slobodan Milosevic and Other Serb Officials: US Department of State Fact Sheet: May 28, 1999

381-83 Remarks to Kosovar Albanians at the US Institute of Peace Conference: Secretary of State Madeleine K. Albright, September 14, 1999

384-89 Kosovo and Yugoslavia: Law in Crisis, Prof. Robert Hayden

390-91 Legal Basis for NATO Military Action . . . The Balkan Action Council: April 1, 1999

392-93 Legality of the NATO Action, John M. Rogers, University of Kentucky College of Law

394-95 The Kosovo Situation and Military Action, Frederic L. Kirgis, ASIL Insight March, 1999

396 Comment, Branko M. Rakic, ASIL Insight, March, 1999 397-98 World Court Rejects Yugoslav Requests to Enjoin . . .

Peter H.F. Bekker and Christopher J. Borgen, ASIL Insight June, 1999

399-400 Indictment of Slobodan Milosevic, Michael P. Scharf, ASIL Insight, June 1999

October 3 (cont’d) 9. The September 11 attack, the response in Afghanistan, and the War on Terrorism

Course Reader, v. 1: 401 Statement by NATO Secretary General Lord Robertson

(Oct. 2, 2001), available at http://www.nato.int/docu/speech/2001/s011002a.htm

402-03 What is Article 5? NATO Decision regarding NATO and the Scourge of Terrorism

404-09 Jonathan I. Charney, Editorial Comments: The Use of Force Against Terrorism and International Law, 95 AJIL 835 (Oct. 2001)

410-15 Thomas M. Franck, Editorial Comments: Terrorism and the Right of Self-Defense, 95 AJIL 839 (Oct. 2001)

Date Topics

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* * * FALL BREAK October 8-10 —No Classes Meet * * *

October 15 10. The War in Iraq

• Legal & Policy Issues on the War in Iraq: A Debate (Prof. Moore vs. Prof. Turner)

Documents:

2:19 U.N. Security Council Resolution 1441, adopted Nov. 8, 2002

Course Reader, v. 1: 416-20hSecret memo from Atty Gen. Lord Goldsmith to Blair on the legality of war with Iraq, dated 7 March 2003

(12 days before the invasion). Online at: http://zfacts.com/metaPage/lib/Goldsmith-2003-03-07-memo-to-Blair.pdf

Optional Readings for October 15: Course Reader, v. 1:

420i-20j Rumsfeld’s Memo of Options for Iraq War, Nov. 6, 2006 420k-20n Iraq Study Group Report: Executive Summary, Dec. 6, 2006

421-28 William H. Taft IV and Todd F. Buchwald, Preemption, Iraq, and International Law, 97 AJIL 557 (July 2003) 428a-43 JOHN NORTON MOORE, SOLVING THE WAR PUZZLE 69-

82 (2004) October 17 D. Human Rights for Contexts of Violence: Norms Concerning the Conduct of

Hostilities: Jus in Bello Guest Speaker: Col. David Graham

Center for National Security Law

1. Theoretical and Historical Overview - General Principles - The Law of The Hague, the Law of Geneva, and the 1977 Protocols - Applicable Conventions

Casebook:

321-336 (H. Levie, J. Grunawalt, & D. Graham ch. 6)

Date Topics

15


Documents: 2:21 Skim Hague Convention IV (1907) 2:22 Skim Hague Convention V (1907) 2:23 Skim Hague Convention IX (1907) 2:24 Skim Hague Convention XIII (1907) 2:25 Skim Geneva Convention for Amelioration of the

Wounded (1949) 2:26 Skim Geneva Convention Relative to the Treatment of Prisoners of War (1949) 2:27 Skim Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949) 2:28 Skim Protocol Relating to the Protection of Victims of International Armed Conflicts (1977) 2:29 Skim Protocol Relating to the Protection of Victims of Non-International Armed Conflicts (1977) 4:7 Convention on the Prevention and Punishment of the Crime of Genocide (1948) 4:10 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) October 22 2. Conduct of Hostilities and Protection of Non-Combatants: Targeting,

Weapons Systems, Belligerent Occupation, and the Law of Neutrality Guest Speaker: Col. David Graham

Center for National Security Law Casebook:

336-59, 362-365 (H. Levie, J. Grunawalt, & D. Graham, ch. 6)

Course Reader, Volume 2: Insert A 2010 Memo for Attorney General: Applicability of Federal Criminal Laws and the Constitution to Complicated Lethal Operations against Shaykh Anwar al-Aulaqi (released June 23, 2014) Available at

http://www.washingtonpost.com/r/2010-2019/WashingtonPost/2014/06/23/National-Security/Graphics/memodrones.pdf

3. Procedures for Implementation and Enforcement (including Reprisals and Protecting Powers)

Casebook:

359-62 (H. Levie, J. Grunawalt, & D. Graham, ch. 6)

Date Topics

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October 24 E. War Crimes and the Nuremberg Principles Casebook:

413-455 (M. Scharf, ch. 8) Documents: 2:34 Nuremberg Trials Final Report (1945) 2:35 Affirmation of the Principles of International Law Recognized by the Charter of the Nürnberg Tribunal (1946) F. Illustrative Case Studies: War Crimes in the Gulf War and in the Yugoslav

(Bosnia-Herzegovina, Croatia, Serbia) Conflict

Course Reader, Volume 2: Gulf War:

444-49 Selected UN Security Council Resolutions: 670 (1990) [excerpts], 674 (1990)

450-52 UN General Assembly Res. 45/170 (1990) 453-63 skim Letter with Interim Report Assessing the Losses of

Life Incurred During the Iraqi Occupation of Kuwait, as well as Iraqi Practices Against the Civilian Population in Kuwait, U.N. Doc. S/22536 (April 29, 1991)

464-65 Letter from Edwin D. Williamson, U.S. State Department Legal Adviser, to Robert F. Turner (Aug. 23, 1991)

Yugoslav Conflict: 468-72 Selected UN Security Council Resolutions: 808 (1993),

819 (1993) 473-84 “Eighth Report on War Crimes in the Former

Yugoslavia,” Supplemental U.S. Submission of Information to the UN Security Council, June 17, 1993, reprinted in U.S. DEP’T OF STATE DISPATCH, July 26, 1993, at 537-48 [Skim]

485-99 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)), 1993 I.C.J. 3-28 (Provisional Measures, Order of April 8) [Skim] Documents: 2:36 UN Security Council Resolution 780 (1992) 2:37 UN Security Council Resolution 827 (1993) 2:41 Statute of the International Criminal Tribunal for the Former Yugoslavia (2004) [Skim]

Date Topics

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G. The International Criminal Court Course Reader, v. 2:

561-85 Ruth Wedgwood, The United States and the International Criminal Court: The Irresolution of Rome, 64 LAW & CONTEMP. PROB. 193 (Winter 2001).


#7 Origin of the International Criminal Court Documents: 2:39 Rome Statute of the International Criminal Court (1998)

[Skim]

October 29 H. International Terrorism and Its Control: The Events of September 11 and Their Aftermath

Casebook: 485-522 (J. Murphy, ch.10) Readings, On Reserve:

#8 J. Moore, Civil Litigation Against Terrorism: Neglected Promise, in LEGAL ISSUES IN THE STRUGGLE AGAINST

TERROR 197, 231-234 (Moore & Turner, eds., 2010) [a draft protocol to UN anti-terrorism conventions]. #9 A. Deeks, Pakistan’s Sovereignty and the Killing of Osama Bin Laden 15 INSIGHTS, Issue 11 (May 05, 2011) https://www.asil.org/insights/volume/15/issue/11/pakistans-sovereignty-and-killing-osama-bin-laden Online (skim): For greater granularity about ISIS see the following links: http://www.nytimes.com/interactive/2015/06/17/world/middleeast/map-isis-attacks-around-the-world.html http://www.nytimes.com/interactive/2014/06/12/world/middleeast/the-iraq-isis-conflict-in-maps-photos-and-video.html http://www.pbs.org/wgbh/frontline/film/rise-of-isis/ (video program) See also the Institute for the Study of War: http://www.understandingwar.org/ Documents: Choose One of the following Three:

2:42 Skim Tokyo Convention on Offenses and Certain other Acts Committed on Board Aircraft (1963)

2:46 Skim Convention on the Prevention and Punishment of

Date Topics

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Crimes against Internationally Protected Persons, Including Diplomatic Agents (1973)

2:48 Skim International Convention against the Taking of Hostages (1979)

I. Domestic Terrorism Casebook: 1463-1477 (M.E. Bowman, ch. 33) October 31 III. Strategic Stability and Arms Control & American Security Doctrine

A. Theoretical and Historical Overview

Casebook: 839-57 (A. Coll, ch. 18) 563-96 (R. Lehman, G. Roberts, & D. Mahley ch. 13)

Documents: 1:1 Washington’s Farewell Address: The American Interest

in Diplomatic Freedom, Sept. 17, 1796 [Skim] 1:5 George Kennan, The Long Telegram, Feb. 22, 1946*

[Skim] 1:8 National Security Council Memorandum # 68 [1950]

[Skim] 2:7 North Atlantic Treaty, 1949 [Skim] 4:13 Final Warsaw Declaration: Toward a Community of

Democracies (2000) [Skim]

B. Nuclear Weapons and Their Effects

Casebook: 673-82 (R. Lehman, G. Roberts, & D. Mahley ch. 13)

*For those who are interested, see also U.S. INSTITUTE OF PEACE, ORIGINS OF THE COLD WAR: THE NOVIKOV, KENNAN, AND ROBERTS “LONG TELEGRAMS” OF 1946 (1991), which contains full texts of the telegrams: from George Kennan, U.S. Chargé d’Affaires in Moscow, to the U.S. State Department (Feb. 22, 1946); from Nikolai Novikov, Soviet Ambassador to the United States, to Soviet Foreign Minister Viacheslav Molotov (Sept. 27, 1946); and from Frank Roberts, Britain’s Chargé d’Affaires in Moscow, to British Foreign Minister Ernest Bevin (March 1946).

November 5 C. Strategic Arms Limitation Talks (SALT I & II) and Strategic Arms Reduction

Talks (START I, II, & III) and Resulting Treaties and Agreements

Date Topics

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Casebook: 596-625 (R. Lehman, G. Roberts, & D. Mahley ch. 13)

Documents: 3:21 ABM Treaty, 1972

3:22 SALT I, 1972 [excerpts] 3:30 START II, 1993 [excerpts]

D. Mutual Balanced Force Reduction/Conventional Armed Forces in Europe Talks (MBFR/CFE) and Theater Nuclear Force/Intermediate-Range Nuclear Force Talks (TNF/INF) and Resulting Treaties Casebook: 625-73; 682-90 (R. Lehman, G. Roberts, & D. Mahley, ch. 13)

Documents: 3:17 CFE Treaty 1990 [excerpts]

3:18 White House Fact Sheet on CFE 3:19 CFE Treaty 1999 [excerpts] 3:26 INF Treaty, Dec. 8, 1987 [excerpts]

E. Contemporary Issues: Nonproliferation and Counter-proliferation of Nuclear,

Chemical, and Biological Weapons and Ballistic Missiles

- Non-Proliferation Treaty (NPT), July 1, 1968 and recent review conference - Chemical Weapons Convention (CWC), January 13, 1993 - Biological Weapons Convention, April 1972 - Missile Technology Control Regime (MTCR) - Comprehensive Nuclear Test Ban Treaty (CTBT)


586-89 U.S. Arms Control and Disarmament Agency, Office of Public Affairs, “Fact Sheet: The Missile Technology Control Regime” (May 17, 1993) [Skim]

590-92 U.S. Arms Control and Disarmament Agency, Official Text Statement of Ambassador Thomas Graham, Jr. (Sept. 13, 1994) [Skim]

593-96 U.S. Arms Control and Disarmament Agency, U.S.-Democratic People’s Republic of Korea agreed Framework (Oct. 21, 1994) [Skim]

597-600Agreed Framework Between the United States of America and the Democratic People’s Republic of Korea, Geneva (Oct. 21, 1994) [Skim]

601-04 Letter of Transmittal to the Senate of the White House from President William J. Clinton: September 22, 1997

Date Topics

20


605-06 Why Ratify the CTBT? Bureau of Arms Control Fact Sheet: October 8, 1999 [Skim]

607-10 CTBT Facts and Fiction: US Department of State, October 8, 1999 [Skim]

611-26 Decision Briefs: October 11-12, 1999, Center for Security Policy [Skim]

Documents:

3:7 Non-Proliferation Treaty [excerpts] (1968) 3:9 Convention on the Prohibition of Bacteriological and

Toxin Weapons (1972) 3:12 Chemical Weapons Convention [excerpts] (1993)

3:13 Comprehensive Nuclear Test Ban Treaty [excerpts] (1996)

3:39 Missile Technology Control Regime (formed 1987)

1993-2006 North Korean Violation of NPT as a Case Study Course Reader, v. 2:

Insert AA Emma Chanlett-Avery, Ian E. Rinehart, Mary Beth D. Nikitin, & Sungtae Park, North Korea: U.S. Relations, Nuclear Diplomacy, and Internal Situation, CONG. RES. SERVICE, Jan 15, 2016, available at https://www.fas.org/sgp/crs/nuke/R41259.pdf. [Skim] F. United States-Russian Strategic Cooperation


Insert AAA U.S.-Russia Relations: “Reset” Fact Sheet, WHITE HOUSE OFFICE OF THE PRESS SECRETARY, June 24, 2010, https://www.whitehouse.gov/the- press-office/us-russia-relations-reset-fact-sheet. [Skim] G. National Missile Defense Course Reader, v. 2:

661-67 Papers by Mary Elizabeth Hoinkes and R. James Woolsey, The ABM Treaty in a Changed World (Charlottesville: Center for National Security Law, 1999).

November 7 IV. National Institutional Framework

Date Topics

21


A. The Constitutional Framework for the Division of National Security Powers Between Congress and the President

1. Historical Background and General Principles

Casebook:

859-903 (R. Turner, ch. 19) November 12 2. The Authority of Congress and the President to Conclude, Interpret,

and Terminate Agreements Relating to National Security Casebook:

973-1007 (R. Dalton, ch. 21) 3. The “Dual vs. Unitary” Theory Debate Arising from the “Broad-

Narrow” Issue in Interpreting the Anti-Ballistic Missile (ABM) Treaty

Course Reader, v. 2: 673-97 skim Annex in THE NATIONAL LAW OF TREATY IMPLEMENTATION by John Norton Moore (Carolina Academic Press, 2001) 698-712 “Introduction: Great Case and Bad Law,” in TREATY INTERPRETATION, THE CONSTITUTION AND THE RULE OF LAW by John Norton Moore (Oceana Pubs, Inc. 2001). Optional Readings for November 12:

Course Reader, v. 2: 668-72 Preface in THE NATIONAL LAW OF TREATY IMPLEMENTATION by John Norton Moore (Carolina Academic Press, 2001) 713-28x “Disarming the Virus: ‘Dual’ Versus ‘Unitary’ Theories of Treaty Interpretation,” in TREATY INTERPRETATION, THE CONSTITUTION AND THE RULE OF LAW by John Norton Moore (Oceana Pubs, Inc., 2001). 729-32 “Conclusion: Reclaiming the Rule of Law in United States Treaty Practice,” in TREATY INTERPRETATION, THE CONSTITUTION AND THE RULE OF LAW by John Norton Moore (Oceana Publications, Inc., 2001). November 14 4. The Authority of Congress and the President to Use the Armed Forces Abroad

Guest Speaker: Robert F. Turner

Date Topics

22


Associate Director, Center for National Security Law

Casebook: 927-57 (R. Turner, ch. 20)


733-36 Statement of Conrad K. Harper, Legal Adviser, U.S. Dep’t of State, on “Legal Authority for UN Peace Operations,” Before the Subcomm. on Legislation and National Security of the House Comm. on Government Operations, 103d Cong. 2d Sess., March 3, 1994, reprinted in 33 I.L.M. 822-29 (1994)

5. The War Powers Resolution Casebook:

957-72 (R. Turner, ch. 20)

Course Reader, v. 2: 737-67 R.F. TURNER, The Rule of Law in National Security

Affairs, in REPEALING THE WAR POWERS RESOLUTION 47-107 (1991)

Documents: 5:29 National Commitments Resolution (1969)

5:30 War Powers Resolution (1973) 5:31 Nixon’s Veto of the War Powers Resolution Readings, On Reserve:

#10 H.H. KOH, The National Security Constitution We Inherited: From the Founding to the National Security Act, in THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 67-100 (1990)

November 19 B. The National Security Process

Casebook: 1009-40 (J. Baker, ch. 22)

Documents: 5:1 National Security Act of 1947 5:4 Skim National Security Decision Directive 266 (1987)

Plus: Organizational Charts of the U.S. National Security Process and the Chains of Command, including: U.S. Department of State, U.S. Department of Defense, Joint Chiefs of Staff, Combatant Chain of Command, National Security Council, Central Intelligence Agency, Relevant Senate Committees, and Relevant House Committees

Date Topics

23


*** THANKSGIVING BREAK November 21-23 No classes meet ***

November 26 C. Secrecy, Access to National Security Information, and the Classification System

Casebook: 1087-1130 (R. Turner, ch. 24)

Documents: 5:49 Executive Order 13292 on National Security Information [Skim] 5:50 Executive Order 13381 on eligibility for access [Skim]

D. Intelligence and Counterintelligence

Casebook:

1041-86 (Morgan & Fredman, ch. 23)

Documents: 5:54 Skim Executive Order 12333 on U.S. Intelligence Activities 5:56 Hughes-Ryan Amendment (intelligence oversight, 1991) 5:61 Intelligence Reform and Terrorism Prevention Act of 2004 E. The Foreign Intelligence Surveillance Act Casebook: 1201-20 (M. Shadel, ch.27) Documents: 5:53 Skim Foreign Intelligence Surveillance Act (1978) Optional Readings for November 26: Course Reader, v. 2:

Insert B (after p. 767) Presidential Policy Directive/PPD-28, Signals Intelligence Activities, Jan. 17, 2014. Available at https://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities

Insert C NSA’s Implementation of Foreign Intelligence Surveillance Act Section 702, April 16, 2014. Available at

http://www.dni.gov/files/documents/0421/702%20Unclassified%20Document.pdf

Supplementary Online (skim per your interest) Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted Under Section 215 of the USA PATRIOT Act and on the

Date Topics

24


Operations of the Foreign Intelligence Surveillance Court, 1/23/14. Available at https://www.pclob.gov/library/215-Report_on_the_Telephone_Records_Program.pdf

November 28 V. Individual Rights and Accountability

A. Freedom of Expression, Protection of Privacy, and National Security 1. The First Amendment of the United States Constitution and National Security

Casebook: 1131-68 (R. O’Neil & J. J. Wheeler ch. 25)

2. The Fourth Amendment of the United States Constitution and National

Security

Casebook: 1169-99 (M.E. Bowman, ch. 26)

B. Detainee Rights Casebook: 457-83 (J. Altenburg & T. Nachbar, ch. 9) [skim] Optional Readings for November 28: Course Reader (briefly skim these excerpts), v. 2: 768-77 Rasul et al., v. Bush, Supreme Court case, argued April

20, 2004, decided June 28, 2004 [excerpts] 542 U.S.___(2004)

778-97 Hamdi et al., v. Rumsfeld, Supreme Court case, argued April 28, 2004, decided June 28, 2004 [excerpts] 542 U.S.___(2004) 798-830Hamdan v. Rumsfeld, Supreme Court case, argued

March 28, 2006, decided June 29, 2006 [excerpts] 548 U.S.___(2006)

On Your Own Review the suggested readings for this section on your own:

C. National Security Violations Casebook:

1221-64 (J. Breinholt, ch. 28)

December 3 VI. Other National Legal Issues

A. Homeland Security

Date Topics

25


Casebook: 1417-62 (S. Spaulding, ch. 32)

Documents: 5:6 Posse Comitatus Act (1878) 5:9 Homeland Security Act of 2002

B. Law and Warfare in the Cyber Domain Casebook: 537-62 (P. Rosenzweig, ch. 12)

On Your Own Review the suggested readings for additional issues that can be read based

on your own personal interest.

C. The Environment and National Security

Casebook: 1479-1553 (J. Cruden, ch. 34)

Course Reader, v. 2: 831-33 UN General Assembly Res. 47/37 (1992)

D. Security Aspects of Oceans Law

Casebook: 755-83 (H. Robertson & J. Kraska, ch. 15) December 5 VII. Economic Sanctions and Export Control

A. An Introduction to Economic Sanctions Casebook:

1315-48 (R.R. Newcomb & M. Roberts, ch. 30)

B. An Introduction to Export Controls Casebook: 1389- 1410 (L. Christensen & A. Cotterill, ch. 31) Guest Speaker: Richard Newcomb, Esq.

Former Director, Office of Foreign Assets Control, U.S. Department of the Treasury

Classes end December 5, 2018

JOHN NORTON MOORE

John Norton Moore is the Walter L. Brown Professor of Law at the University of Virginia School of Law. He also directs the University’s Center for National Security Law and the Center for Oceans Law & Policy and was the Director of the Graduate Law Program at Virginia for more than twenty years. Viewed by many as the founder of the field of national security law, Professor Moore chaired the prestigious American Bar Association’s Standing Committee on Law and National Security for four terms. He is the author or editor of over 25 books and over 165 scholarly articles and served for two decades on the editorial board of the American Journal of International Law and is currently an honorary editor of the Journal. He is a member of the Council on Foreign Relations, the American Law Institute, the American Society of International Law, the Order of the Coif, Phi Beta Kappa, and numerous other professional and honorary organizations.

In addition to his scholarly career, Professor Moore has a distinguished record of public service. Among seven Presidential appointments, he has served two terms as the Senate-confirmed Chairman of the Board of Directors of the United States Institute of Peace and, as the first Chairman, set up this new agency. He also served as the Counselor on International Law to the Department of State, and as Ambassador and Deputy Special Representative of the President to the Law of the Sea Conference, Chairman of the National Security Council Interagency Task Force on the Law of the Sea, and as a member of the United States’ legal team before the International Court of Justice in the Gulf of Maine and Paramilitary cases (a Deputy Agent for the United States in the Paramilitary case). Professor Moore served as a Member of the Director of Central Intelligence’s Historical Review Board from 1998-2002.

In the recent past, he has served as a Consultant to both the President’s Intelligence Oversight Board and the Arms Control and Disarmament Agency. He has also been a member of the National Advisory Committee on Oceans and Atmosphere, the United States Delegation to the Conference on Security and Cooperation in Europe, and the Presidential Delegation of the United States to observe the elections in El Salvador. In 1990, he served, with the Deputy Attorney-General of the United States, as the Co-Chairman of the United States-USSR talks on the Rule of Law. He also served as the legal advisor to the Kuwait Representative to the United Nations Iraq-Kuwait Boundary Demarcation Commission. Currently he is also a consultant to the OSS Society. (NSL 09/13)

National Security Law Syllabus - Virginia

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Transcript of National Security Law Syllabus - Virginia