FALL, 2006





1.            This examination is a take-home that will be sent to you by email at 8:00 am on Friday, December 8 unless you have a conflict and have made arrangements to take it on Monday, December 11 in which case it will be sent to you then. If it is a problem to get your exam by email, you may pick up the exam in Room 203. In any case, you must return your answers in person to Room 203 no later than 4:00 pm on the day you receive it.

2.            You must use exam identification numbers. You must pick up the sticker in advance. Be sure to allow space on your exam answer cover sheet for the sticker with the identification number. Put your examination number on each page of your answer sheets in case the sticker becomes separated from your exam answer. Do not put your name on your answer sheets and do not identify yourself in any way.

3.            Your answers should be typed in at least 11 point type on 8 ½ ;" by 11" paper with 1" margins.

4.            You should be able to answer all the questions in 10 pages. Do not write more than 12.

5.            You may consult your notes, the casebook, or any written materials you have when you receive the exam. You may not consult any person or receive any other type of assistance.

6.            The honor code applies to this take home exam. You must perform all work on your own and abide by the instructions on this page.

7.            For those taking the exam on the 8th, do not discuss it with any other person since others will be taking it on the 11th.

I hope no one takes political offense at what follows. It is not meant to take a position one way or another on the current partisan battles, but in an effort to make the exams more interesting by basing them on current events. Good luck, and remember, I need concise directions as to how to drive to Denver (if you weren't in class and don't know what that means, (a) shame on you, but (b) don't worry about what it means since it concerns only my advice as to how to write the answers).

Do Well, and Do Good!


Assume that once the new Congress convened in January the volatile issue of wiretaps in the name of national security is one of the first issues taken up. President Bush insisted that the Executive Branch simply had to have the authority to intercept any electronic communication between anyone located in the United States and someone whom the Department of Justice has reason to believe may be planning an activity within the US that would either injure 5 or more people or result in property damage of more than $ 1 million. He continued to argue that securing a warrant would not be appropriate since courts are too slow, do not understand the danger of the current international situation, and are too prone to leaking the identities of those whose communications are about to be intercepted. Thus, he argued that the administration should be able to conduct the intercepts without any prior approval from anyone. Not surprisingly, the new Democratic Congress did not see it quite that way. But, they lacked the votes to overcome a threatened Presidential veto, and so the Electronic Security Protection Act ("ESPA") was enacted into law.

One provision of the Act makes it a felony for anyone to intercept an electronic communication without a prior warrant except in emergency situations. To meet the President's concerns about courts, ESPA establishes an independent agency called the "Electronic Surveillance Commission." The Commission is authorized to issue warrants for the interception of the electronic communications described above. It is specifically directed to take into account the current level of threat to the United States from terrorism when determining whether a warrant should issue. To accomplish this, the Commission is directed to gather information from other agencies with respect to the threats from terrorism. The Commission is authorized to issue guidelines as to the current status of terrorism and the types of communications that might be subjected to interception. To ensure that the Commission is sensitive to international affairs and to make sure that the President did not appoint only those who would rubber stamp his requests, Congress provided that it shall have three members who are appointed by the Secretary of State and who serve for a 7 year term. The Secretary is directed to consult with the Senate Judiciary Committee before making the appointments and the appointments do not take effect until 60 days after the Committee is notified of their appointment. Finally, ESPA provides that the decision of the Commission with respect to a warrant is final and may not be reviewed by person, agency, or court.

Shortly after it was established, the Commission published a notice in the Federal Register that carefully analyzed recent developments said that in light of the current state of affairs in Iraq, Iran, and North Korea that it had concluded that a heightened level of security is warranted and hence that it would be more lenient than normal in granting warrants.

So here we go.

1.            What arguments could you make that the Commission is unconstitutional? What result?

2.            Soon after the Federal Register notice appeared, a young reporter who is a civilian employed by the internal Army newspaper came to you all troubled. He explained that he regularly corresponded by both phone and e-mail with trusted sources "on the other side" in the course of his reporting and that he was afraid some of his conversations might be intercepted. Indeed, he said even the threat of an interception would likely make his sources reluctant to provide detailed information. He asked whether there was any way he could challenge the determination in court to make sure that the Commission applied the normal standards for warrants that a court would use. What would you tell him about the prospects for judicial review?

3.            No matter what your answer to Question 2, if the court were to review the Notice, what standard of review would it apply - Chevron or Skidmore - and why?

4.            While all this was pending, he continued to communicate with the other side, and indeed his fears were realized: a warrant was granted and several of his e-mails were intercepted. They were then turned over to a senior official at the Department of the Army who was outraged. The official called him to his office, summarily fired him, and then had him escorted by armed guard to clean out his office and escorted from the building. The reporter is humiliated at his being treated as if he were a traitor and thinks his firing totally inappropriate since he was only fulfilling his duty as a reporter. Now he wants to know whether there is anything you can do about it.

He is Civil Service employee, and one of the applicable statutory provisions provides:

"Employees shall be . . . protected against arbitrary action, personal favoritism, or coercion for partisan political purposes." (See 5 U.S.C. § 2301(b)(8).)

        What do you tell him?