Glennon, M J --- "Teaching National Security Law" [2006] LegEdDig 47; (2006) 14(Spec Ed) Legal Education Digest 25

Teaching National Security Law

M J Glennon

(2006) 14(Spec Ed) Legal Education Digest 25

55 J Legal Educ 1&2, 2005, pp 49–56

Foreign relations law, as I think of it, consists of those parts of constitutional law, relating primarily to the separation of powers and federalism doctrines that touch upon the actions of the United States abroad. It therefore focuses upon the allocation of decision-making authority. National security law, in contrast, deals primarily with the domestic effects of foreign relations decision. It focuses primarily upon individual rights and civil liberties as they are affected by those decisions. My course combines both, though it is weighted heavily toward foreign relations law.

The course has a number of purposes. It addresses headline issues concerning nerve-centre disputes about the nation’s survival, and citizens should be able to participate in these discussions. One purpose is therefore to help students internationalise an analytical framework grounded in constitutional doctrine that will apply to varying fact situations, as I discuss below. Another is simple information transmittal: students need to know facts and cases and ideas to practice the law satisfactorily and to discuss these issues. The largest purpose of the course is to teach students how to teach this subject to themselves when they confront problems that the course does not directly address.

The class could be taught as a regular lecture/discussion course, with a final examination, but I have always taught it as a seminar, with a paper requirement rather than an examination. The seminar is simulation-orientated: following an introductory period of about four classes, each session is structured around one of nine real or hypothetical situations that highlight specific issues addressed by course readings. In practical, real-life contexts, students are thus challenged to perform as real lawyers. Before getting to the simulations, I try to ensure that students are familiar with basic concepts. The introductory part of the course is aimed at acquainting them with recurrent issues that constitute the unifying threads of this subject.

The first class, on concurrent congressional-presidential power, is intended as a basic introduction to the separation of powers doctrine as it pertains to U.S. foreign relations. In the second class, dealing with plenary powers of the president and Congress, I discuss three cases: United States v Pink, United States v Curtiss-Wright, and Korematsu v United States. I ask about the source of the plenary presidential power in question. With the two poles established, the stage is now set for a closer examination of the sources of presidential power. A third class deals with the Chadha case, which I use as the vehicle for exploring this issue. Finally, in the fourth introductory class, I ask whether it is still accurate to characterise ours as a government of separated powers within the realm of foreign affairs. I distribute copies of the ‘torture memo’ in which the (subsequently repudiated) claim was advanced that the president is possessed of plenary power to order the torture of detainees. This class identifies students who support Congress and those who support the president and provides something of a benchmark in measuring students’ attitudinal changes as the course progresses.

The remaining classes, about nine, are all simulations. They become progressively harder. With each, materials are designed to illuminate all sides of the matter at issue. I try, but do not always succeed, to fashion simulations in which equities are evenly divided. I also try to fashion simulations that are as realistic as possible, and I point out to the class any way in which the simulation is not realistic.

During the simulation I try to be even handed in my questioning of each side. An instructor’s opinions inevitably colour the way a class is conducted, and in my view students have a right to know what the teacher thinks. I do not try to eliminate ambiguity from the facts of the simulations — much as some students may seek clarification. During the simulations, presentations are made on each side and the session is then open for questions. By the end of the semester, skills in cross-examination usually have improved markedly.

Materials are assigned from the casebook that I wrote with Tom Franck, Foreign Relations and National Security Law. In addition I assign excerpts from my book Constitutional Diplomacy, and, for a contrasting point of view, from Foreign Relations Law, by Phillip R Trimble.

Over the nearly thirty years that I’ve taught the course it has continuously proven quite popular. Students like the simulation format and are energised by the subject matter. They frequently remark that the simulation approach, requiring as it does that students actually use what they can learn, is much more effective pedagogically than other teaching formats and techniques typically employed in law school classrooms. Law school learning, as this seminar proves, can provide an elaborately interesting intellectual experience, combining topical and analytic rigor in a format that is genuinely enjoyable for faculty and students.