George Mason University
School of Public Policy
PUBP 710.003
The Constitution and U.S. Foreign Intelligence
Tues 7:20 pm – 10:00 pm - ARLFH 468
Syllabus – DRAFT
Professor: Robert L. Deitz, [email protected] (Phone: (703) 993-3480)
I am in my office (Rm 674) most week days; to schedule an
appointment, please phone or email.
Required text
The United States Constitution. (Available on line.)
All the required readings from the syllabus below may be obtained on
line, as set forth below, or will be handed out in class.
Required readings
The Articles of Confederation (accessed at
http://www.usconstitution.net/articles.html)
Hobbes, Thomas., Leviathan, Chapters 18, 21, 26 (accessed at
http://www.gutenberg.org/files/3207/3207.txt
Locke, John., The Second Treatise of Civil Government, Chapters 13 and 15
(accessed at http://www.constitution.org/jl/2ndtr13.htm,
http://www.constitution.org/jl/2ndtr15.htm)
U.S. Constitution (accessed at http://www.constitution.org/constit_.htm)
Cases:
Clay v. United States, 430 F.2d 165 (5th Cir. 1970) (accessed at
http://cases.justia.com/us-court-ofappeals/F2/430/165/462841/)
Dow Chemical Co. v. United States, 476 U.S. 227 (1986) (accessed at
http://supreme.justia.com/us/476/227/)
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1986) (accessed at
http://www.constitution.org/ussc/071-002a.htm)
Frisbie v. Collins, 342 U.S. 519 (1952) (accessed at
http://supreme.justia.com/us/342/519/case.html)
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Jones v. United States, decided Jan. 23, 2012 (access by entering Supreme
Court and the case name).
Katz v. United States, 389 U.S. 347 (1967) (accessed at
http://supreme.justia.com/us/389/347/case.html)
Kerr v. Illinois, 119 U.S. 436 (1886) (accessed at
http://supreme.justia.com/us/119/436/index.html)
Kyllo v. United States, 533 U.S. 27 (2001) (accessed at
http://supreme.justia.com/us/533/27/index.html)
Marbury v. Madison, 5 U.S. 137 (1803) (accessed at
http://supreme.justia.com/us/5/137/case.html)
Olmstead v. United States, 277 U.S. 438 (1928) (accessed at
http://www.law.cornell.edu/supct/html/historics/USSC_CR_02
77_0438_ZS.html)
United States v. Knotts, 400 U.S. 276 (1983) (accessed at
http://supreme.justia.com/us/460/276/)
United States v. United States District Court, 407 U.S. 297 (1972) (accessed
at http://supreme.justia.com/us/407/297/index.html)
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson J.,
concurring) (Steel Seizure Case) (accessed at
http://supreme.justia.com/us/343/579/index.html)
Course description
The conduct of foreign intelligence by the United States raises particularly
complicated and interesting problems under the U.S. Constitution.
These problems are both textual -- for example, whether the Fourth
Amendment limits the gathering, for foreign intelligence purposes, of signals
intelligence in this country – and structural – for example, whether covert
action is consistent with the separation of powers. The course will begin
with readings from Hobbes and Locke, two English political philosophers
whose writings influenced the drafting of the Constitution. We will then
study the Articles of Confederation, the predecessor to the Constitution. We
will follow with an examination of the structure and text of the Constitution
and analyze how various intelligence undertakings square with its
provisions. These inquiries will be based upon court cases and other
primary materials. Throughout, we will review real-world issues in the
context of our readings. Each week students will present orally an event
from the news and explain how intelligence resources could assist US
policymakers in addressing that event.
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Learning outcomes
1. An understanding of the text and structure of the U.S. Constitution.
2. An understanding of the interplay between intelligence problems
and constitutional issues.
Evaluation
Student evaluations will comprise the following: mid-term exam: 20%;
final exam 50%; class participation and practicum: 30%.
Schedule
Weeks 1 and 2: Introduction and readings from Thomas Hobbes and John
Locke. Hobbes’ Leviathan, Ch. 18 (Of the Rights of Sovereigns by
Institution), Ch. 21 (Of the Liberty of Subjects), Ch. 26 (of Civil Laws);
Locke’s Second Treatise of Government, Ch. XIV (Of prerogative), Ch. XV
(Of Paternal, Political, and Despotical Power, considered together).
Week 2: The Articles of Confederation.
Week 3: The Structure of the U.S. Constitution (Art. I). Case: Steel
Seizure Case (Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952) (Jackson, J., concurring).
Week 4: The Structure of the U.S. Constitution (Art II).
Week 5: The Structure of the U.S. Constitution (Art III et seq.). Case:
Marbury v. Madison, supra.
Week 6: The Bill of Rights (Amendments I – X).
Week 7: The Bill of Rights (Amendments I – X), cont.
Week 8: The Civil War Amendments (Amendments XIII – XV).
Week 9: Mid-Term Exam.
Week 10: Limits on Collecting Signals Intelligence. Cases: Olmstead v.
United States, 277 U.S. 438 (1928); Katz v. United States, 389 U.S. 347
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(1967); Clay v. United States, 430 F.2d 165 (5th Cir. 1970); United States v.
United States District Court, 407 U.S. 297 (1972).
Week 11: Limits on Overhead (Imint) Collection. Cases: United States v.
Knotts, 400 U.S. 276 (1983); Kyllo v. United States, 533 U.S. 27 (2001);
Dow Chemical Co. V. United States, 476 U.S. 227 (1986).
Week 12: Limits on Detaining and Rendering Enemy Combatants. Cases:
Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Ker v. Illinois, 119 U.S. 436
(1886); Frisbie v. Collins, 342 U.S. 519 (1952).
Week 13: Limits on Interrogating Enemy Combatants.
Week 14: Practicum.
Week 15: Final Exam.
Academic Accommodation for a Disability
If you are a student with a disability and you need academic
accommodation, please see me and contact the Disability Resource Center
(DRC) at 703-993-2474. All academic accommodations must be arranged
through the DRC.
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