ED_503.01_Final_CDSE_CONLAW.pdf

CDSE Constitutional Law Analysis Document FINAL December 7, 2011

Defense Security Service

Constitutional Law and its Application to DoD Security

—Detailed Design Document—

December 7, 2011

Course Number: CDSE ED 503

Constitutional Law and its Application to DoD Security

Defense Security Service Center for Development of Security Excellence

Spring 2012

Professor: Dr. Gregory F. Intoccia Telephone Number: 202-391-6279 Office Location: Washington, D.C.

Office Hours: By appointment only. Please contact the instructor via Sakai.

Email: gintoccia@c2ti.com

COURSE DESCRIPTION/OVERVIEW:

This course develops a practical understanding and critical thinking skills related to both the Constitutional foundational authorities that are the basis of many Department of Defense (DoD) Security responsibilities, and the limits of those authorities, which constrain DoD Security action. This course will provide the student with tools for identifying Constitutional issues that may arise during the course of developing or implementing DoD Security policy so that the issues can be anticipated and averted through proper planning.

The course will rely primarily on the legal case study method as a learning strategy for understanding key principles of Constitutional law. Case law provides insight into how actual Constitutional controversies are resolved and can have a binding effect on the resolution of subsequent cases, so the case study method helps judges, lawyers, and students understand the law and predict the outcome of future cases. Recognizing that potential DoD Security issues may arise or already exist that have not yet been tested in the courts, other methods, such as using hypotheticals or studying scholarly articles, will also be employed.

Constitutional law deals with both the interpretation and implementation of the United States Constitution. Given that the Constitution is the foundational document of our form of government, it is concerned with many of the most fundamental relationships to our society, including those among the three branches of the Federal government (Executive, Legislative, and Judicial), the relationship between the Federal government and State governments, and the relationship between Federal/State governments and the individual, expressed in individual rights.

Constitutional law sets forth the organizational principles upon which the Nation’s common defense, and laws and regulations have been built. Ultimately, it establishes the important parameters within which the Federal government’s public officials must operate.

Each branch of the Federal government is a co-equal and is free to interpret the Constitution.

Yet since the early days of our Republic, courts have been viewed as the ultimate arbiters of the law, and the Constitution has been no exception. Thus in order for us to better understand Constitutional law and the important parameters it establishes, we must be able to not only understand the contextual provisions of the Constitution itself, but also understand how that document has been interpreted by courts generally and the United States Supreme Court in particular, which sits at the apex of the Federal court system.

The course will examine the origins of, distribution of, and limitations upon government authority under the Constitution of the United States. It will include the study of the Executive, Legislative, and Judicial action; the powers and limitations of the President and Executive branch of government; and the powers and limitations of Congress. The course will also address the exercise of Congressional power and judicial protection against abuse of Government power in violation of rights, liberties, privileges, or immunities conferred by the Constitution.

The course provides students with both a general introduction to Constitutional law and a targeted examination of Constitutional issues that are apt to arise within the context of DoD Security. Accordingly, the course provides a graduate-level introductory overview of the Constitution as interpreted by the courts, and exposure to recent issues that, although they may be unresolved by the courts or may not yet have arisen within a judicial context, may nonetheless significantly impact the policies and practices of the DoD Security community.

While this course is largely legal in nature, it is geared toward students with non-legal backgrounds.

CREDITS CONFERRED: 3 Semester Hours

PREREQUISITE: None

STUDENT OUTCOMES/OBJECTIVES:

This course is designed to enable students to:

1. Analyze and interpret key terms and provisions of the U.S. Constitution and selected

Constitutional case law.

2. In hypothetical situations, identify and categorize basic Constitutional issues that may arise.

3. Analyze selected legal case law of Constitutional significance:

• Discuss key Constitutional issues raised by the court

• Identify and examine key operative facts relied upon by the court

• Identify and interpret key rationale used by the court

• Summarize the key holding of the case

• Distinguish the case’s legal and policy implications

4. For selected subject areas of recently heightened significance to the DoD Security community (including those of Personnel Security, detention in various contexts, insider threats, WikiLeaks-type scenarios, and electronic communications):

• Distinguish Constitutional issues that may arise from each;

• Analyze both the legal and policy implications for DoD Security from Constitutional issues identified; and

• Analyze societal and other factual or legal trends that may have a bearing on future

Constitutional interpretations of these subjects.

5. Analyze the relationship between Security professionals and Government attorneys with regard to formulation and implementation of DoD Security policy:

• Discuss the relationship between the Security professional and the government attorney;

• Distinguish and characterize points at which the appropriate government attorney advice should be sought;

• Characterize and examine the government attorney’s key responsibilities;

• Distinguish and communicate mutual expectations between the security professional and the government attorney;

i. Discuss the Security professional’s ethical obligations that remain throughout the process; and

ii. Analyze in a selected hypothetical or actual case with significant DoD

Security interest, whether alternative advice or action by either policy professionals or government attorneys could have mitigated or averted significant negative consequences for national security.

DELIVERY METHOD/COURSE REQUIREMENTS:

To make the course as meaningful as possible to the Security professional, Part I of this two-part course presents a survey of Constitutional law with the objective of identifying and applying key provisions of the Constitution relating to government structure and civil liberties. Part II addresses Constitutional issues that may arise in connection with clusters of policy or problem subjects identified by DoD Security professionals as important to the Security community. We will drill down into these issues with a purpose of not simply learning the state of the law, but understanding the potential Constitutional issues that may be implicated. Since Constitutional law and DoD Security policy change over time, a student’s heightened sensitivity of Constitutional legal reasoning can help him or her anticipate potential Constitutional roadblocks, and therefore prevent DoD Security policy and implementation from encountering them.

The course will consist of the following:

• Readings as directed

• Online responses to weekly Discussion Questions

• Replies to post of other students

• Feedback and comments from the professor

• Part I Examination consisting of an objective test

• Essay Assignment covering the first part of the course

• Final, comprehensive Essay Assignment

The assigned and recommended course readings will include both authoritative sources (e.g., the Constitution; Supreme Court decisions; DoD publications, Government Accountability Office, and other policy documents), implementation readings (e.g., Executive Orders, DoD directives seeking to fulfill the requirements of authoritative documents), and scholarly sources including books and law review articles. Students are expected to read the assigned readings before posting electronic responses in the weekly discussion area in the Sakai Collaborative Learning Environment (CLE). Students will be asked to discuss and debate responses by critically analyzing and responding to at least two other students’ responses each week.

This is a graduate-level course in Constitutional law for non-law students. Students who enter the course may have little or no previous law-related course experience. Therefore, while we expect the student to learn many Constitutional topics, we do not expect our students to be able to cover the same ground as their law school counterparts, nor to have the same technical legal analytical skills.

GENERAL COURSE REQUIREMENTS:

1. Assignment Schedule

• Generally, students’ Initial Posts to the weekly Discussion Questions will be due no later than Thursday night at 2400 hours (EST). Since the Initial Posts are graded, students are expected to apply their greatest effort and quality of thought to them.

• Students will be required to reply to two other students’ Initial Posts. These Reply Posts will be due no later than Sunday night at 2400 hours (EST). Replies should be used as an opportunity to challenge others’ positions and present different perspectives grounded in good reasoning and support.

• In the first week, the student should turn to the Lesson 1 discussion area where he or she will see the first week’s discussion question and where the student will submit a response. Subsequent week’s responses to discussion questions will be submitted in appropriate weeks’ discussion areas.

• The discussion area for a given week will not be open for submission of Initial Posts or Reply Posts until the week of discussion because the work of each week builds on the previous.

• During weeks with Essay Assignments instead of Discussion Questions, essays will be due no later than Sunday night at 2400 hours (EST).

• Generally, students are expected to meet the above requirements unless prior approval is obtained from the instructor after the student has provided justification via the Sakai message system 24 hours in advance of the due time/date. After the first lesson, a student who does not comply with a deadline without providing good justification beforehand may expect an appropriate deduction in points for the assignment. This policy does not apply to unexpected TDYs or deployments, emergencies, or other unforeseen events. The aim is to keep the student on track but to be flexible, recognizing life's demands. Since the course is structured around weekly discussions, it will be critical for students to keep up with the readings and to participate in class.

2. Responses to other Students

• Each student will be required to reply/respond to two other students’ Initial Posts in each weekly discussion area. In these Reply Posts, students are required to address their classmate by name. Also, a student should place his or her name at the bottom of the posting.

• A key aim is to develop a stimulating back-and-forth discussion, taking advantage of insights and expertise that exist among the students. If students read through all of the discussion threads, take the time to reflect, and then provide a thoughtful reaction to their classmates’ Initial Posts, students will find the course to be an enriching experience.

• The instructor may comment on a student’s responses to other students’ posts, but the Reply Posts are not evaluated for the course grade.

3. Citations

In discussion question Initial Posts, Reply Posts, and Essay Assignments, if the student paraphrases an author’s work, he or she is required to use proper source citation. If the student uses another author’s actual language, quotation marks around the language should be used. If the student has questions about proper attribution, he or she should consult The Chicago Manual of Style, 16th Edition. Students may prefer to use the Air University (AU) Style and Author Guide, which is based on The Chicago Manual of Style, yet is less comprehensive and contains military-related terms. The AU Style and Author Guide is available at http://www.au.af.mil/au/awc/awcgate/style/styleguide.pdf.

4. Classes with more than 12 students will be divided into two groups. Unless specified otherwise, a student should reply to discussion threads only within his or her assigned group.

5. The Sakai Collaborative Learning Environment (CLE) system will be the primary method that the instructor and the student will communicate with each other on a one-on-one basis.

6. Students are required to keep a hardcopy of all their Initial Posts and Essay Assignments in the event there is a problem with the Sakai CLE or another software problem.

INCORPORATION OF FEEDBACK:

The course instructor will provide multiple opportunities for students to provide constructive feedback on course delivery and content over the period of the course. Students will be afforded the opportunity to provide written feedback following each assignment, to include general feedback on the course, or specific feedback on an individual assignment. Online feedback is also encouraged throughout the course, either through email or a course web forum.

Students will receive feedback from the instructor within his replies to student posts in the weekly Discussion Question forums. The instructor will provide feedback approximately once per week to students on an individual basis, and the instructor will provide written feedback to the students on all assignments.

GRADING:

The following provides a breakdown of how students’ performance in the course will be evaluated.

Class Participation based on Initial Posts 30% Part I Exam

Objective Test Pass/Fail Essay Assignment 30%

Part II Exam 40%

Individual graded assignments with a score lower than 80% are acceptable; however, a student’s final grade at the end of the semester must be 80% or higher to pass the course.

PARTICIPATION AND ESSAY ASSIGNMENTS:

1. Class Participation (30%):

Grading of class participation will be based only on each student’s Initial Posts, which are responses to Discussion Questions. Reply Posts, although required, will not be graded. This approach provides students with more freedom to express themselves in the replies and to further actively engage in a process of open discussion. Grading of the Initial Posts will be guided by an examination of whether the posts:

• Are directly responsive to the Discussion Question(s) posed by the instructor

• Demonstrate thinking skills that go beyond merely restating the material learned in the course, for example, showing an ability to synthesize the material and that he or she can apply the assigned reading to new situations and new contexts

• Take a well-articulated position

• Support the student’s position with good reasoning

• Demonstrate an ability to stimulate further discussion

• Show proper source citation and formatting

2. Part I Exam:

Students will have approximately one week to complete the Part I Exam, as specifically determined by the instructor. The Part I Exam will consist of two parts covering the first part of the course. Students may not collaborate with other persons on either part of the exam.

a. Test (Pass/Fail) There will be a written examination on the objectives of Part I. A score of 70% or higher is required to pass. Students scoring below 70% may retake the test, but the instructor may require some remedial work or require that the student wait for some reasonable period before retaking the exam.

b. Essay Assignment (30%) There will be an Essay Assignment on a topic assigned or approved by the instructor. A grading rubric is included at the end of this section.

3. Part II Exam: Essay Assignment (40%) There will a comprehensive Essay Assignment on a topic assigned by the instructor. Students may not collaborate with other persons on the essay assignment. A grading rubric is included at the end of this section. Students will have approximately one week to complete the Part II Exam, as specifically determined by the Instructor.

Essay Grading Rubric The following guidelines will be used for grading Essay Assignments in this course.

Knowledge – Content 60% Points ___/60

All key elements of the assignment are covered.

Demonstrates a complete understanding of concepts presented in course material and also exhibits the following:

• Is comprehensive and accurate (no factual errors)

• Is insightful and reflective

• Develops a central theme or idea

• Displays active engagement

• Demonstrates the ability to analyze the ideas of others

Comments:

Presentation – Writing and Style 25% Points Earned ___/25

Tone is appropriate to the content and assignment.

Organization is logical; thesis is clear.

The introduction includes a clear thesis and previews main points of the paper/essay.

The body:

• Develops thesis

• Includes clearly stated main points

• Is comprehensive and accurate (no factual errors)

• Is insightful and reflective

• Effectively uses details, examples and/or analysis The conclusion flows from the body of the paper and reviews main points of the paper/essay.

Grammar:

• Grammar, structure, spelling and punctuation are correct.

• Sentences are well-structured, complete, clear, and concise.

Topic and transition sentences are utilized and organize/maintain the flow of thought.

Comments:

Administrative 15% Points Earned ___/15

Completed within the prescribed time limits Conforms to prescribed word limits Conforms to any additional instructions provided Includes appropriate formatting: title page, tables, appendices, reference page, etc. in accordance with assignment administrative guidelines Citations are used where required and comply with the assignment administrative guidelines.

Bibliography is complete and complies with AU Style Guide or The Chicago Manual of Style.

Comments:

Total = 100% Points Earned ___/100

Summary/Additional Comments:

GRADING SCHEME:

Letter grades will be assigned according to the following scheme. The course total will be rounded to the nearest tenth.

A 93.0 – 100.0% A- 90.0 – 92.9% B+ 87.0 – 89.9% B 83.0 – 86.9% B- 80.0 – 82.9% C 70.0 – 79.9% D 60.0 – 69.9% F less than 60.0%

COURSE TEXTBOOKS:

The textbook National Security Law, Fifth Edition by Stephen Dycus, Arthur L. Berney, William C. Banks and Peter Raven-Hansen, (New York: Wolters Kluwer Law & Business, 2011) will be relied upon for various parts of the course, but there is no single textbook available that addresses all instructional needs for this class. Consequently, there will be assigned readings identified from multiple print and online resources. While some readings may be made available for download, others may not be available and will need to be purchased through a commercial source. Students should acquire all texts and sources before the course begins.

COURSE OUTLINE:

The following outlines the 16-week course agenda.

Lesson/ Week Topic Assignment

1 Icebreaker, Course Overview, Pre-Constitutional framework, and how to read a legal case

Participate in Weekly Discussion (i.e., submit an Initial Post to the Discussion

Question and reply to two other students)

2 An Introduction to the Separation of Defense/National Security powers

Complete required reading Participate in Weekly Discussion

3 The President’s Defense/National Security Powers

Complete required reading Participate in Weekly Discussion

4 Congress’s Defense/National Security Powers Complete required reading Participate in Weekly Discussion

5 Courts’ Defense/National Security Powers Complete required reading Participate in Weekly Discussion

Federal-State Relations, Homeland Security and Disaster Scenarios, Testing Limits of the Constitution

Complete required reading Participate in Weekly Discussion

7 Bill of Rights and Amending the Constitution, Part I

Complete required reading Participate in Weekly Discussion

8 Bill of Rights and Amending the Constitution, Part II

Complete required reading Participate in Weekly Discussion

9 Part I Exam Test and Essay Assignment

10 Personnel Security and the Constitution Complete required reading Participate in Weekly Discussion

Post-9/11 detentions in the name of safety and national security: Constitutional foundations and issues raised

Complete required reading Participate in Weekly Discussion

Fort Hood shootings and other Insider or domestic threats: Are individual Constitutional protections so strong that they cannot protect us from the Insider threats?

Complete required reading Participate in Weekly Discussion

WikiLeaks: A collision of criminal law, First Amendment rights, Government ability to suppress information, and National Security?

Complete required reading Participate in Weekly Discussion

Old wine stored in new skin: Does the growing use of electronic communications indicate many new Constitutional issues are yet to come?

Complete required reading Participate in Weekly Discussion

Ethical considerations in the quest for policy that meets Constitutional muster:

Responsibilities shared both by Government attorneys and Security professionals

Complete required reading Participate in Weekly Discussion

16 Final Exam Essay Assignment

The following are examples of material that may be used in several lessons:

Fort Hood Shootings and Other Insider or Domestic Threats:

• Checkpoint Searches o United States v. Arnold

• Identification and Watch-Listing o Gilmore v. Gonzales o Identification Requirements o Watch Lists and Other Identification-Related Databases

Profiling o Farag v. United States o Legal Analysis of Profiling o Problems in Assessment of Profiling o National Origin and Religious Profiling

The President’s National Security Powers:

• The President’s Foreign Relations Power o United States v. Curtiss-Wright Export Corp.

o Dames & Moore v. Regan

• The Commander in Chief’s War Powers o Defensive War Power o The Prize Cases o The President’s Emergency Powers o In re Neagle

Personnel Security:

• Department of Navy v. Egan

• Brown v. McElroy

• Becker v. Philco

• Taglia v. Philco

HIGHLIGHTS OF INTERVIEWS CONDUCTED FOR THIS COURSE ANALYSIS:

In November 2011, the course instructor/SME and senior instructional systems designer interviewed five senior DoD Security managers who had been invited to participate by the Education Division. Additional interviews are pending availability of interviewees.

Name Position

Rebecca Allen Deputy Director, Industrial Security Field Operations, DSS

John Fitzpatrick Director, Information Security Oversight Office National Archives and Records Administration (NARA)

Jay Fraude General Counsel, DSS

Theresa Ramsey Deputy Director, Information and Physical Security Policy Intelligence and Security, OUSD(I)

Robert Smith Director, Consolidated Adjudications Facility Human Resources Directorate Washington Headquarters Services

All interviewees agreed that a solid understanding of Constitutional law is important and should be included in Security managers’ professional development as they move beyond the levels in which compliance is their main concern to levels at which they influence and help create policy.

Every interviewee mentioned the value of including the WikiLeaks situation in the course because of the issues around it, including Freedom of Speech and Freedom of the Press. Other issues they judged as important are mentioned below.

• Understanding of the separation of powers among the three branches of the Federal government was considered crucial for professional growth. Considerations include:

o Deference to the Executive branch due to the President’s role as Commander in Chief o Authority of DoD Security stemming from the President’s Executive powers o Cases which test the balance of power, e.g., Egan o Relationships of Federal, state, tribal, and local authorities

• Application of traditional rights of privacy in modern cyber-communication vs. legitimate governmental interest in security and other governmental obligations.

o Individual’s right to privacy when using Government computers vs. private computers

• Seeking advice on legal issues from Counsel o Roles and ethical responsibilities of Security personnel and Government attorneys o Ongoing ethical responsibilities in pursuing compliance with and creation of policy

• Changing nature of Insider threats.

o Fort Hood/Assad incident o Use of personal information to detect Insider threats o Whether racial, religious, or other discriminating attributes may be used in assessing threats

• Detention o Executive powers vs. Congressional funding o Habeas corpus, military commissions o Detention of military vs. civilian personnel o Detention in battlefield vs. home o Exclusion of classified information by defense attorneys in trial, e.g. Guantanamo

• The individual’s rights in the clearance process o Becker v. Philco, Taglia v. Philco o Impact of clearance denial and/or revocation on suitability and right to livelihood o Recent involvement of Merit Systems Protection Board (MSPB), e.g., Romero o Due process in clearance appeal process o How security norms evolve and the interpretation of individual rights and discrimination, e.g., mental health treatment, sexual orientation, financial hardship o “Legal discrimination”

• Cases specifically brought up by interviewees for consideration for the course:

o Department of the Navy v. Egan, separation of powers o Becker v. Philco, requirements for contractor to disclose information o Taglia v. Philco, requirements for contractor to disclose information o Romero v. Department of Defense, limitations of appeal of clearance revocation o Huynh v. Cheney, clearance for naturalized citizens o Escobar, use of Government electronics communication for personal use