This course will focus on three specific (and related) sets of topics within the broader field of National Security Law: the detention, treatment, and trial of terrorism suspects—whether in military commissions or civilian criminal courts. In particular, the central questions we aim to consider are (1) what lawful options the government has when it comes to the incapacitation of terrorism suspects; and (2) what role courts should play in reviewing the government’s conduct pursuant to each of these authorities? To that end, as much as our focus is on the actions and policies of the political branches for each topic, we will also look carefully at the role the courts have historically played in resolving legal claims in these fields, including questions as to the appropriate degrees of secrecy, deference, and justiciability, and we will devote significant attention to the work of the federal courts today in defining (and policing) the limits of the government’s authority vis-a-vis those captured in the war on terrorism.
Students who took counterterrorism Law (Spring 2017) may not take National Security Law: Detention, Treatment, and Trial for credit.