Office Hours: MWF 11:20-12:00 Denny 301

Spring 2007 H. L. Pohlman

Office hours: MWF 11:20-12:00 Denny 301

Ext. 1249

READING LIST AND REQUIREMENTS

Law and Policy 400-01

Law and Terrorism

I. Course Description:

This course examines three major legal/policy questions regarding the ongoing war on terrorism: detention of citizens as enemy combatants; the jurisdiction of American courts over alleged enemy aliens detained abroad; and the constitutionality of trying enemy combatants by military commissions. The course provides students with an opportunity to appreciate and evaluate how the federal court system is reacting to the stress of the current war on terrorism. Students will write seminar topics on some aspect of these three major policy issues or one of the following topics: the government’s obligation to provide terrorist defendants with access to exculpatory evidence; the use of evidence gained through foreign intelligence surveillance in criminal trials; the liability of American personnel for acts of torture; the admissibility of evidence acquired by torture in criminal trials held in the United States; the limits of criminal liability for the act of providing “material support” to a terrorist organization; the constitutionality of “sneak and peak” searches and seizures of “business records” (such as library records) under the USA Patriot Act; and, lastly, the constitutionality of the recently-enacted Military Commissions Act of 2006.

II. Course requirements, standards, and expectations:

-- Attendance, discussion, and Mock Arguments40%

-- Unannounced quizzes on readings20%

-- one 20-page term paper with a policy focus40%

(Papers can be on any topic involving law and terrorism. However, the papers cannot be summarizations of the major cases that we have debated in the course: Hamdi v. Rumsfeld, Rumsfeld v. Padilla, Rasul v. Bush, or Hamdan v. Rumsfeld. Students are urged to start thinking about possible paper topics immediately.)

--Students are responsible for all announcements made in class, regardless if the student is absent or if the announcement changes the requirements of the course.

-- No late papers or re-writes are allowed.

-- No extra-credit is granted.

-- Note the definition of plagiarism in the Student Handbook.

III. Useful websites for readings:

Findlaw:

U.S. Supreme Court:

Jenner and Block websites:

Hamdi:

Rasul:

Padilla:

Hamdan v. Rumsfeld site:

SCOTUSblog:

Lexis/Nexis: electronic database available through library (all Supreme Court cases)

Defense Dept. Military Commissions:

Project to Enforce the Geneva Conventions:

American Fed. of Scientists:

The BrennanCenter for Justice:

Amnesty International:

ElectronicPrivacyInfoCenter:

ACLU: Safe and Free:

Center for Democracy and Tech:

Federalist Society’s Page on National Security:

Delaware Criminal Justice Council:

National Institute of Military Justice:

Center for Constitutional Rights:

Human Rights Watch:

Readings and structure of course:

FIRST MOCK ARGUMENT:

Government team: Brian, Jeffrey, Megan, Heather, Eric, Alexis, Conor

Hamdi/Padilla team: Daniel, Lindsey, Tony, Emily, Amanda, Matthew

January 23:Key Precedents for Hamdi v. Rumsfeld and Rumsfeld v. Padilla:

- Ex parte Milligan, 71 U.S. 2 (1866).

- Moyer v. Peabody, 212 U.S. 78 (1909).

- Ex parte Quirin, 317 U.S. 1 (1942).

- Ex parte Endo, 323 U.S. 283 (1944).

- In re Yamashita, 327 U.S. 1 (1946).

(Class will consist of a discussion of each of these cases in the above order. Each team must be able to explain how the precedent should apply to Hamdi & Padilla. How should the precedent be interpreted? Should it be overruled? Is it a case that is similar or different from Hamdi? Your job is to defend the position that best supports your team’s position.)

January 30:Main Briefs filed in Hamdi v. Rumsfeld and Rumsfeld v. Padilla:

- Brief for Petitioners, Hamdi

- Brief for the Respondents, Hamdi

- Brief for the Petitioner, Padilla

- Brief of the Respondent, Padilla

(briefs can be accessed through Jenner and Block websites)

(Class will consist of each team presenting arguments from the briefs that best articulate the team’s position and criticizing the arguments of the other side. The teams must come to a consensus regarding which 6 or 7 issues are to be debated at the mock argument, the order of these issues, and who will be arguing what issue. The class will also determine the order of issues to be argued at the mock argument and who will be arguing what issue.)

February 6: Class is cancelled

February 13: Mock Argument for Hamdi v. Rumsfeld and Rumsfeld v. Padilla:

- each student must read two additional amici curiae briefs filed in Hamdi or Padilla. You should choose amici briefs that are relevant to your issue. Each student should hand in the names of the amici briefs that he or she has read and a one-page explanation of why each is important.

(amici briefs are available at Jenner and Block website)

- each member of the class must also read one additional Supreme Court precedent, one that was not discussed in class on September 6. Each student should choose a precedent that he or she thinks is a decisive one based on his or her reading of the main briefs and the amici briefs. Each student must hand in the name of the precedent he or she has read and a one-paragraph explanation of why the precedent is important. Students are urged to incorporate the precedent into their portion of the mock argument.

(Class will consist of a mock argument before a panel of judges composed of students from the Dickinson School of Law of PennStateUniversity. Each student will hand in an outline of his or her argument. Students cannot read their arguments at the mock argument. Each student’s argument incorporates what he or she has learned about his or her issue from the precedents, the main briefs, and the amici briefs.

February 20: Supreme Court’s decisions in Hamdi v. Rumsfeld and Rumsfeld v. Padilla:

- the decisions are available through the Jenner and Block website or lexis/nexis. Cite is 124 S. Ct. 2633

(Teams no longer exist. Class will consist of a general discussion of the Court’s opinions in Hamdi. Questions that will be addressed are: 1) Which team, if any, did the Supreme Court support? 2) Did the Supreme Court’s opinion change your mind? 3) Has your opinion of the issues evolved over the last four weeks?)

Each student turns in the names of two students who did exemplary work on the Hamdi segment of the course. A student cannot hand in his or her own name. If a student hands in the name of a student who did not contribute much, then that will reflect poorly on the student who turned in the name.

SECOND MOCK ARGUMENT:

Government team: Daniel, Lindsey, Megan, Matthew, Emily, Amanda, Conor

Rasul’s Team: Brian, Jeffrey, Alexis,Tony, Heather, Eric

Listen to Oral Argument in Rasul v. Bush

-Discussion

* Recommended: Thomas Ricks, author of the Fiasco, which discusses how the United States got into the Iraq War, will be speaking in the Great Room of the SternCenter at 7 p.m. on February 26.

February 27: Key Precedents for Rasul:

- Ex parte Quirin, 317 U.S. 1 (1942).

- In re Yamashita, 327 U.S. 1 (1946).

- Johnson v. Eisentrager, 339 U.S. 763 (1950)

- United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).

- INS v. St. Cyr, 533 U.S. 289 (2001).

- Zadvydas v. Davis, 533 U.S. 678 (2001).

(Class will consist of a discussion of each of these cases in the above order. Each team must be able to explain how the precedent should apply to the facts of Rasul. How should the precedent be interpreted? Should it be overruled? Is it a case that is similar or different from Rasul? Your job is to defend the position that best support’s your team’s position.)

March 6: Main Briefs filed in Rasul v. Bush:

- Brief for the Petitioners, Rasul v. United States

- Brief for the Petitioners, al-Odah v. United States

- Brief for the Respondents

(briefs can be accessed through the Jenner and Block website)

(Class will consist of each team presenting arguments from the briefs that best articulate the team’s position and criticizing the arguments of the other side. Each team is free to refer to the relevance of the key precedents discussed in class the week before. The class will also determine the order of issues to be argued at the Mock Argument and who will be arguing what issue.)

March 13:Spring Break

March 20:Mock Argument for Rasul v. Bush:

- each student must read two additional amici curiae briefs filed in Rasul. – You should choose amici briefs that are relevant to your issue. Each student should hand in the names of the amici briefs that he or she has read and a one-page explanation of why each is important.

- Each member of the class must also read one additional Supreme Court precedent, one that was not discussed in class on January 23 or February 27. Each student should choose a precedent that he or she thinks is a decisive one based on his or her reading of the main briefs and amici briefs. Each student must hand in the name of the precedent he or she has read and a one-paragraph explanation of why the precedent is important. Students are urged to incorporate the precedent into their portion of the mock argument.

March 27: Supreme Court Decision in Rasul v. Bush:

- decision is available through Jenner and Block website or lexis/nexis. Cite is 124 S. Ct. 2686.

(Teams no longer exist. Class will consist of a general discussion of the Court’s opinions in Rasul. Questions that will be addressed are: 1) Which team, if any, did the Supreme Court support? 2) Did the Supreme Court’s opinion change your mind? 3) Has your opinion of the issues evolved over the last three weeks?)

Each student turns in the names of two students who did exemplary work on the Rasul segment of the course. A student cannot hand in his or her own name. If a student hands in the name of a student who did not contribute much, then that will reflect poorly on the student who turned in the name

Third Mock Argument:

Government team: Tony, Emily, Amanda, Matthew, Lindsey, Daniel

Hamdan’s team: Megan, Eric, Conor, Brian, Jeffrey, Alexis, Heather

Listen to Oral Argument in Hamdan v. Rumsfeld

-Discussion

April 3:Paper Topic Must be Chosen by this date!

Key Precedents for Hamdan v. Rumsfeld

- Ex parte Milligan, 71 U.S. 2 (1866).

- Ex parte Quirin, 317 U.S. 1 (1942).

- In re Yamashita, 327 U.S. 1 (1946).

- Duncan v. Kahanamoku, 327 U.S. 304 (1946).

- Madsen v. Kinsella, 343 U.S. 341 (1952).

- Reid v. Covert, 354 U.S. 1 (1957).

(Class will consist of a discussion of each of these cases in the above order. Each team must be able to explain how the precedent should apply to the facts of Hamdan. How should the precedent be interpreted? Should it be overruled? Is it a case that is similar or different from Hamdan? Your job is to defend the position that best support’s your team’s position.)

April 10:Main Briefs filed in Hamdan

- Hamdan Merits Brief

- Government Merits Brief

- Hamdan Reply Brief

(All briefs available at Hamdan website)

(Class will consist of each team presenting arguments from the briefs that best articulate the team’s position and criticizing the arguments of the other side. Each team is free to refer to the relevance of the key precedents discussed in class the week before. The class will determine the order of issues to be argued at the mock argument and who will be arguing what issue.)

April 17:Mock Argument for Hamdan v. Rumsfeld:

- each student must read two additional amici curiae briefs filed in Hamdan. These briefs are available at the Hamdan website. Each student should choose amici briefs that support his or her issue. Each student should hand in the names of the amici briefs that he or she has read and a one-page explanation of why they are important.

- Each student must also read one additional Supreme Court precedent, one that was not discussed in class on January 23, February 27, or April 3. Each student should choose a precedent that he or she thinks is a decisive one based on his or her reading of the main briefs. Each student must hand in the name of the precedent he or she has read and a one-paragraph explanation of why the precedent is important. Students are urged to incorporate the precedent into their portion of the mock argument.

(Class will consist of a mock argument before a panel of judges composed of students from the law school. Each student will hand in an outline of his or her argument. Students cannot read their arguments at the mock argument. Each student’s argument incorporates what he or she has learned about his or her issue from the precedents, the main briefs, and the amici briefs.

April 24:Supreme Court Decision in Hamdan v. Rumsfeld:

- decision is available at the Hamdan webiste or lexis/nexis. Cite is 126 S. Ct. 2749

- Each student will describe to the class what he or she is writing his or her term paper on. Possible topics: torture, rendition, torture and the right against self incrimination, right to exculpatory witnesses and evidence (Moussaoui case), Foreign Intelligence Surveillance Act (use of evidence gained through foreign intelligence in criminal trials), various provisions of the USA Patriot Act.

Discussion of Paper Topics

May 1:Discussion of Paper Topics

Writing workshop

- Each student hands in one page of prose by 6 a.m. on May 1. Student’s name should NOT be on the page of prose. Instructor will make anonymous overlays of these pages. Students will read and discuss the overlays in class.

Final Papers due May 8 at Noon