This seminar will examine how the U.S. government regulates and addresses national security in a global economy in which data and money flows freely and sensitive assets in the United States and abroad are owned or controlled by commercial actors. The concept of “national security” in U.S. legal doctrine and regimes is hardly new, but the impact of national security law on the private sector has expanded dynamically since September 11, 2001. The course will trace this history of national security law as it relates to the private sector and the principles for the application of national security to private actors. The focus of the seminar then will be on how these principles apply in two practice areas: (i) national security reviews of foreign investment conducted by the Committee on Foreign Investment in the United States; and (ii) anti-money laundering regulations administered by the Financial Crimes Enforcement Network of the Department of Treasury. The course will use functional examples (i.e., real world cases) to explore fundamental policy questions -- e.g., what is the proper balance between security and openness in a commercial world -- as well as to evaluate the legal and practical considerations of private and commercial actors, which may have fiduciary duties to shareholders and important reputational considerations, when confronted with national security issues.
This seminar is designed for those who are interested in how concepts of national security in the law affect private actors -- primarily, but not exclusively, businesses -- on a daily basis. There will be elements of history, but the focus will be experiential. Accordingly, while the course will not be a heavy reading course, preparation will be important and students may be designated (with significant advance notice) to help lead a particular class discussion. Outside experts from the Executive Branch, Congress, and the private sector will be invited to participate in certain classes.
Course pre-requisites: None
Requirements -- Three requirements:
(a) The preparation of materials to help lead a particular class discussion.
(b) Participation in class discussion centered around real world fact patterns.
(c) A take-home final exam.