The National Security Law Podcast (aka the NSL Podcast) is a weekly review of the latest legal controversies associated with the U.S. government’s national security activities and institutions, featuring Professors Bobby Chesney and Steve Vladeck of the University of Texas at Austin. They bring different perspectives to these issues, but always in a friendly spirit. The program is fast-paced but detail-rich, and is meant for lawyers and non-lawyers alike. If you’ve been looking for a thoughtful yet enjoyable way to keep up with and better understand these issues, the National Security Law Podcast is the show for you. To join the conversation, follow nslpodcast on Twitter (@nslpodcast).
We recorded today before a live audience in Austin! Austin Hall, that is, on the campus of Harvard Law School! Special thanks to Matt Morris and the great students of the Harvard National Security & Law Association, and to all who attended!
We certainly didn’t lack for topics. Professors Vladeck and Chesney discussed and debated:
* The “Beatles” detainees: What are the hurdles to continued military detention of these two formerly-British Islamic State members who are now in U.S. custody in Iraq? Will courts assert jurisdiction? Would they find that IS is in the scope of the ’01 AUMF and the NDAA FY’12? Is there still an armed conflict? And if they instead are prosecuted, what are the hurdles? What does pending litigation in the UK Supreme Court have to do with it all?
* Trumplandia: So much to discuss, including Giuliani’s peremptory strike against testifying and the question of attorney-client privilege, the Mazars decision and Judge Rao’s dissent, and much more.
* DHS roundup: Who is the acting secretary, who is not eligible to be so designated, and what’s this about an administrative subpoena authority designed to help deal with botnets?
Being in the greater Boston region, our frivolity had to be Boston-themed of course. So, tune in for a wicked and rambling run through of Boston-based movies, tv shows, and sports heroes. Better still, stay tuned after that so you can enjoy the extended audience Q&A session that followed it all!
In addition to quoting They Might Be Giants lyrics, this week’s episode features cohosts Bobby Chesney and Steve Vladeck taking on three big issues:
* The Impeachment Inquiry & the White House Counsel’s Letter on Non-Cooperation
* President Trump’s decision to abandon America’s Kurdish allies and thus set in motion the potential release of thousands of Islamic State fighters
* A set of newly-declassified decisions by the FISC (and FISC-R) involving the latest round of Section 702 certification, including a finding that compliance problems at FBI (with respect to running US person queries of the 702 database) amounted, in the totality of the circumstances, to a Fourth Amendment violation.
As for frivolity: the world of sportsball meshed with foreign relations as the NBA quivered in the face of a Beijing backlash, all triggered by a tweet from the Rockets’ GM. “It is time for us all to decide who we are…”
So, you’ll never guess what we’re going to talk about in this week’s episode.
[Editor’s note: Guys, you can’t just say that and then put in no further details in these shownotes. Get back to work! Hello, are you there? Amateurs…]
And we’re back, with a lot of news to cover! Tune in for discussion and (respectful) debate with our cohosts, Professors Vladeck and Chesney, as the review:
* Is it proper for the DNI to withhold from HPSCI a whisteblower complaint under the Intelligence Community Whistleblower Protection Act (ICWPA…Ick-Wipp-Uh!), where the IG has made a determination that the statutory standard has been met but the DNI disagrees? And what remedies might HPSCI (or SSCI) have if the answer is no?
* About that colon/semicolon issue involving Marbury v. Madison…
* Not surprising, but still fascinating: DOJ sues Snowden and his publisher because Snowden didn’t seek pre-publication review for his new book or for certain paid speeches.
* Back to GTMO: Two D.C. Circuit judges make a point of weighing in, via a dissent from denial of a suggestion for rehearing en banc in Qassim, to express their view that (notwithstanding Boumediene) noncitizens held at GTMO cannot invoke the Fifth Amendment Due Process clause.
* Executive privilege: does it make any sense to say that it applies as to a conversation between POTUS and a private citizen?
* Paging Steve Vladeck about citing Steve Vladeck; or, the story of recursive citations
Best of all, however, is the path that leads from talk of a Princess Bride reboot to a generation-later sequel to Coming to America…
Tune in to the latest episode of the National Security Law Podcast as your co-hosts Professors Chesney and Vladeck discuss and debate:
* On the 18th anniversary of the 9/11 attacks: which elements of current counterterrorism law and policy would have come as the biggest surprise back in 2001? This includes a discussion of the removal of John Bolton as National Security Adviser.
* The district court ruling finding that the process for adding U.S. persons to the Terrorist Screening Database violates the Fifth Amendment (Elhady v. Kable).
* Judge Lamberth’s ruling on whether GTMO detainees may have access to a private doctor
* A note on the passing of Judge Robertson
All that, plus way too much “singing” when your co-hosts discover that they both are planning to see Les Mis tonight!
And we are back with more discussion and debate of the latest national security legal news! Tune in for cohosts Steve Vladeck and Bobby Chesney as they take up:
* Domestic terrorism and the questions such as (a) whether there ought to be a “designation” process for domestic groups and (b) whether the phrase “civilian population” presents vagueness issues if employed in a criminal law measure.
* A trial date for the 9/11 trial at GTMO! Will it really be underway as of January 11, 2021? What impact might the election have? And why does that date look familiar?
* Presidential disclosure of classified information: it runs the gamut from formal declassification to…tweeted photographs of photographs?
* We’ve got one eye on the ongoing talk of a “peace” deal in Afghanistan. Apparently U.S. forces will remain in-theater for CT ops re al Qaeda and the Islamic State, meaning such a development might not have the legal consequences as to military detention that some might expect. But don’t ask the National Security Advisor about that, he might not be in the loop on all this!
* National Security Division at DOJ has been busy, this time with charges in two cases involving naturalized American citizens who sought to take up arms for the Islamic State–one in Syria, and the other on a pedestrian bridge over the Grand Central Parkway in Queens…
And then there’s the sportsball…tune in for NFL predictions that are worth what you are paying to listen!
Well, that’s not quite what the President said. It was something about American companies and trade with China, not you and your podcast app. And IEEPA can’t be used to make anyone listen to this podcast, we suppose. But voluntary cooperation is welcome, and those who tune in this week won’t be disappointed when they find co-hosts Vladeck and Chesney discussing and debating:
* The International Emergency Economic Powers Act (IEEPA) as a basis for a potential POTUS order barring U.S. companies from transacting with Chinese counterparts
* The latest developments (this time at the SCOTUS level) in the Ninth Circuit litigation over Trump administration rules attempting to restrict the pathways for seeking asylum in the US
* An important but overlooked military commissions development involving the viability of inchoate conspiracy charges (and the meaning of a badly splintered D.C. Circuit opinion on that topic).
As for frivolity? Not that frivolous today, actually, as your hosts take up the task of giving advice to 1Ls who are starting law school this month. Or, you could just watch clips from the Paper Chase…
And we are back with more debate and discussion concerning the latest national security and law news! In this week’s episode, co-hosts Bobby Chesney and Steve Vladeck explore:
* The legal complexities that followed from the resignation of Sue Gordon as Principal Deputy Director of National Intelligence and the follow-on appointment of Adm. Joe Maguire (up to that point the Director of the National Counterterrorism Center) to be the Acting DNI (a temporary appointment that by statute precludes him from continuing to serve as NCTC Director; no word on whether Amazon intends to use this as a plot point for its Liberty Crossing show).
* Two new bills in Congress, each of which would create a new federal crime of “domestic terrorism” (see here for Senator McSally’s bill, and here for Rep. Schiff’s bill)
* A Ninth Circuit ruling truncating the geographic scope of an injunction preventing the Trump Administration from implementing its plan to require asylum applicants to make their original application before entering the United States (and associated issues with “national” injunctions)
* And then there is our Greenland segment…seriously, a Greenland segment!
This week’s episode features an extended discussion of domestic terrorism as a legal category and as a policy category, in light of the attack in El Paso. Among other aspects, we discuss:
* Substantive criminal charging options at the state and federal levels
* Arguments for an against federal expansion into this area
* Federal terrorism crimes that can be applied in domestic terrorism cases
* The pros and cons of expanding the “designated terrorist organization” concept to domestic groups
* Preventive charging in the domestic terrorism context
* What it would mean to (try to) import foreign terrorism intelligence-collection authorities into the domestic terror setting
We also discuss an important cert. petition pending before SCOTUS, raising the question whether noncitizens in the expedited removal context can invoke the Suspension Clause (DHS v. Thuraissigiam)
After an otherwise somber discussion, stay tuned at the end for some light-hearted frivolity celebrating the improbable recent surge of the New York Mets and the fully-probable and ongoing surge of the Houston Astros.
And we’re back with a new episode, with co-hosts Steve Vladeck and Bobby Chesney discussing and debating the latest national security law news (and, let’s face it, engaging in *lots* of digressions). This week we’ve got:
* Succession-Fest: We go deep into the weeds on a number of succession-in-office topics involving people named to be “acting” this-or-that. Of course we focus in particular on the prospect of an Acting Director of National Intelligence, but we also look ahead to developments impacting the Department of Homeland Security. And, just for kicks, we consider the implications of having a large number of acting officials as department heads in light of, oh, how about the 25th Amendment?
* Military Commissions: We update a few topics from last week, while once more looking ahead to the eventual 9/11 trial.
* SCOTUS in Summer: SCOTUS is out of session, yes, but still takes certain actions. We’ve got a Border Wall update, along with some really-in-the-weeds analysis of the Court’s original (and perhaps exclusive?) jurisdiction for certain types of cases involving states.
* NSD Roundup: Usually the roundup of news involving DOJ’s National Security Division involves one prosecution victory after another, but not this week: We pick up a story from our 109th episode, reporting on the district court’s recent decision to vacate the conviction of Hamid Hayat (the Lodi, California man convicted more than a decade ago for an alleged terrorism plot).
As for frivolity, this week we keep it rather brief and off-the-cuff, focusing on some Major League Baseball trade developments.
This week on the National Security Law Podcast, with co-hosts Bobby Chesney and Steve Vladeck:
* War Powers: Congressional testimony from the State Department’s Acting Legal Advisor confirms that the administration has placed AQIM on the list of “associated forces” within the organizational scope of the 2001 AUMF, notes that the administration has not (yet) determined that Iran is within the scope of either the 2001 or 2002 AUMFs, and much more.
* Prosecution vs Military Detention: A U.S. citizen who fought for the Islamic State was turned over by SDF to the United States, and is now back in the U.S. facing material support charges in federal court. We compare and contrast this outcome with the use of military detention in the case of John Doe, of Doe v. Mattis fame.
* Prosecuting KSM and the other 9/11 Defendants: Meanwhile, on the military commission front, a major clash is looming in the prosecution of KSM and the other 9/11 defendants. They’ve moved to dismiss the charges on grounds of “outrageous government conduct,” based on the manner in which they had been interrogated. We explain what that sort of motion involves, compare it to past examples like Jose Padilla, explore its prospects, and project what sort of sanction realistically might be imposed should the defendants actually prevail on the merits.
* SCOTUS, Executive Privilege, and United States v. Nixon – It’s the anniversary of the Court’s Nixon ruling, which recognized Executive Privilege but also confirmed that it can be overcome. Timely!
* Going Dark Part Deux – We note AG Barr’s speech bemoaning the Going Dark trend, and speculate about the prospects for actual legislation in this area (spoiler: prospects are slim).
As always, we end with frivolity (or perhaps it is more accurate to say, there’s actual planned frivolity at the end, in contrast to all the unplanned stuff earlier in the show). This week? We breakdown the just-released, expanded trailer for WestWorld Season III. Critical question: If WestWorld was real and included a WesterosWorld environment, which House would you join?
For our latest episode, we offer you NSL Podcast Mad Libs in lieu of show notes!
We’re back after a __ [number]-week break, and there have been some ____ [noun] security law developments in the meantime! Professors ____ [full name of celebrity] and [full name of sports star] are here to ____ [verb] all of it. ___ [adjective] ____ [plural noun] on this episode include:
* Justice Stevens, R.I.P.: We reflect on key national security ____ [plural noun] he wrote or impacted.
* Border ____ [noun] Litigation Update
* SCOTUS trends: The ____ [noun] General keeps seeking early SCOTUS involvement in ____ [plural noun]. Steve’s forthcoming ____ [name of school] Law Review article ____ [verb ending in -s] explains the significance of all this in terms of the ____ [noun] Docket, as you can read here.
* PCLOB gears up: The ____ [noun] & Civil [plural noun] Oversight Board is back in action, identifying upwards of __ [number] current projects, including a review involving XKEYSCORE and another concerning _____ [adjective] _____ [plural noun].
* Luxemburgers: ____ [name of celebrity] explains what took him to Luxembourg recently and what this had to do with Privacy ____ [noun].
* The NDAA inches closer to a ___ [noun] fight: The House _____ [past-tense verb] its version of the NDAA, and it is packed with ____ [plural noun]. The White House may well ____ [verb] the end result, but first we have to see what happens with the _____ [name of an organization] version of the bill and the process of reconciling the two.
* UCI & Bergdahl: The Army Court of ___ [plural noun] has ruled on Bowe Bergdahl’s Unlawful Command Influence appeal, finding that President Trump’s Twitter ___ [noun] constituted a ____ [adjective] ____ [noun], but the resulting _____ [noun] was harmless.
* Casebooks: Just in time for ___ [a year far into the future], Steve and his co-authors ______ [name of rock star], ____ [name of movie star], and ______ [name of politician] have completed the supplement for their casebook on ______ [noun] law.
As for frivolity, your co-hosts at long-last present their review of a the ___ [adjective] Star Trek episode “The ______ [name of animal].”
Welcome back to the National Security Law Podcast, where co-hosts Bobby Chesney and Steve Vladeck cross-swords with courtesy and nerdistry while reviewing the latest national security legal news (along with a healthy does of frivolity at the end…and sometimes the middle…and the beginning…)! This will be the last episode until July 17th or 18th, and it covers:
* Doe v. Mattis is back! Well, not in a major way. But we do at least have a reissued D.C. Circuit opinion that confirms what we all knew: the government had been negotiating with Iraq and Saudi Arabia, etc. We discuss whether the long process of allowing this to become public shows a system working well or problematically.
* Back to the Border (Wall) – Judge Gilliam has now issued a permanent injunction in the Sierra Club lawsuit challenging the Trump Administration’s attempts to generate new border wall construction funds via DOD’s support-to-counternarcotics account. It’s more or less the same legal analysis as in the preliminary injunction opinion discussed in detail in Ep. 123, but we bring things up to date here.
* SCOTUS calls BS – Chief Justice threads the needle in the Census Citizenship Question case, Department of Commerce v. New York, holding on one hand that a citizenship question can be asked on the Census, but also that the Department of Commerce in this instance was lying when claiming to want to do so in 2020 solely in order to help DOJ enforce the Voting Rights Act. That pretext ruling sets up an interesting comparison to the earlier Travel Ban litigation, and sets the table for more challenges in the near future with DACA, Border Wall litigation, and much more.
* Crypto Wars Redux? News of a National Security Council Deputies Meeting discussing the “going dark” challenge has people wondering if a push for legislation is on the horizon. We suspect not.
* Phone Metadata and Compliance: Recent news detailing how a telecom provider gave NSA too much information in response to an otherwise-proper USA Freedom Act request has added fuel to the fire that is burning right underneath the thin thread on which Section 215 renewal is hanging. But was this proof of the need to let that thread snap, or just an example of a compliance framework effectively spotting and fixing errors?
And then there was sportsball. Turns out the Knicks front office isn’t good at what they do, and Golden State’s is really, really good. So say we all…
We are back with the latest in national security legal developments, with Professors Chesney and Vladeck agreeing where they can and arguing respectfully (and, let’s face it, nerdishly) where they can’t. On tap this week:
* Military Detention and the Constitution: We dive deep into the questions raised by the D.C. Circuits decision in Qassim, which raises the possibility that the Fifth Amendment Due Process Clause might apply in the context of habeas challenges brought by military detainees held at GTMO notwithstanding the Court’s earlier Kiyemba decision.
* Cyber Operations Against Iran: After our earlier discussions of a Persian Gulf of Tonkin scenario nearly became reality, we ended up seeing, instead, a possible series of cyber operations against various Iranian targets. We talk about whether this raises the same or similar separation of powers concerns, and more generally place this development in context with our earlier war powers debates.
* Who’s Who in the Pentagon Succession Chain: As we approach the half-year mark with only an acting SecDef, and with so many open spots and unconfirmed-but-acting officials, the succession chain is growing ever more complicated. We review the sequence of events likely to unfold with Acting Secretary Esper and others.
* NSD Roundup: Hey, counterterrorism prosecutions are still a thing, even if the nation’s attention has wandered elsewhere. We take brief note of three recent cases.
* SCOTUS Roundup: Is the administrative state itself doomed, or are we just in for a bit of non-delegation doctrine revival? And if the latter, are we also eventually going to see a new Curtiss-Wright-type case?
Next, let’s head to…Westworld! For our frivolity, we at last are going to review Westworld Season 2. And you thought Facebook collected a lot of data…
We are back with the latest national security law news, with your co-hosts Steve Vladeck and Bobby Chesney explaining, debating, and–let’s face it–geeking out. This week we’ve got:
* War Powers: The latest events in the simmering situation with Iran, and what they portend in terms of potential claims of Article II authority to use at least some amount of military force without further Congressional approval.
* Military Commissions: The mil coms continue to generate pre-trial disputes, this time with a new round of disagreements about just who will serve as the capital-qualified defense counsel in Nashiri.
* SCOTUS: The current term of the Supreme Court is nearing its end, and this week we saw some interesting developments including affirmation of the longstanding “separate sovereigns” rule (pursuant to which state and federal authorities may separately prosecute for the same underlying acts without violating the Double Jeopardy rule, something that has implications in light of the President’s Pardon Power extending only to federal offenses) as well as some thought-provoking commentary by Justice Thomas concerning the metes and bounds of stare decisis.
* Hackback: We review the key moving parts in the re-introduced “AC/DC bill”–that is, the Active Cyber Defense Certainty Act–including the separate provisions on beacons and on “active cyber defense measures.”
* Hacking the Russian Grid: We also take note of the revelation that CYBERCOM may have hacked Russia’s grid in some respect, and we talk about the international law implications of that story.
And, as always, there is frivolity. Let’s some it up with an acronym: STTNG, and a call for listener suggestions for particular episodes for review!
And we are back, after a one-week hiatus, with loads of national security law debate and discussion, not to mention some Grade B frivolity!
On tap for Professors Vladeck and Chesney:
* Detention of Enemy Combatants: Assessing the significance of the SCOTUS cert. denial in al-Alwi, and Justice Breyer’s statement about the possible impact of evolving circumstances over time
* NDAA FY’20 Draft Provisions: The Senate and House NDAA bills are packed with interesting items, including the possibility of an exception to the GTMO transfer ban for purposes of medical treatment inside the United States, reinforcement of statutory preconditions to separating the NSA/CYBERCOM “dual hat,” and more.
* Detention and U.S. Persons: You don’t see Ted Cruz and Diane Feinstein teamed up every day, so we take a close look at the latest version of the perennial Due Process Guarantee Act.
* The Vetoed Yemen Hostilities Resolution and Its Impact from a Youngstown perspective: Some scholars say that the bill should be construed to prohibit certain forms of support to the Saudi coalition, even though the bill died thanks to a veto. We test that claim.
* Circumventing Constitutional Checks on the Appointments Power: Ye ol’ Federal Vacancies Reform Act has some loose provisions, and we assess a recent move to take advantage of this.
All this and much more…including a salute to the U.S. team at the Women’s World Cup, and a discussion of the Goal Celebration Controversy…
In a final episode before taking a one-week travel break, co-hosts Bobby Chesney and Steve Vladeck discuss and debate an array of recent national security law developments including:
* Assange & the Espionage Act: DOJ has unsealed a superseding indictment against Julian Assange, including a raft of Espionage Act charges with serious (and long-anticipated) implications for journalists. The indictment does not mention the connection between UT’s Volleyball Gymnasium and a key architect of the Espionage Act back during WWI, so we also address that…
* Border Wall Funding: In Sierra Club v. Trump, a federal district judge has issued a preliminary injunction in relation to the Trump administration’s efforts to transfer funds to DOD’s “Section 284” account, while also addressing the distinct “Section 2808” military construction funding mechanism.
* SCOTUS Grants Cert. in the Cross-Border Shooting Case: Steve isn’t busy enough, so SCOTUS has decided to hear Hernandez v. Mesa (on whether a Bivens damages action should exist where a federal agent is alleged to have violated the Fourth & Fifth Amendments and there is no other remedy available).
* NSD Roundup: Short notes on a pair of terrorism-related case developments.
* How Was that Not Military Activity? On the ITLOS decision concluding that Russia was not engaged in “military activities” when it fired on and seized Ukrainian vessels.
But, enough about all that serious stuff. We’ve also got opinions about the NBA…
In this week’s episode, Professors Vladeck and Chesney discuss and debate:
* The district court ruling in Trump v. Committee on Oversight, in which the court rejects an attempt to quash a subpoena directed at an accounting firm that handled work for various Trump organizations.
* The Office of Legal Counsel (OLC) opinion asserting blanket testimonial immunity for former White House Counsel Don McGahan.
* The prospect that President Trump might invoke the Insurrection Act in order to have authority either to bring state National Guard forces of federal armed forces into service in relation to the capture and removal of migrants inside the United States.
* The prospect that President Trump will issue pardons to U.S. servicemembers subject to court martial for war crimes.
* The prospect that SCOTUS or Congress might one day modify the Feres doctrine, which precludes servicemembers from suing under the Federal Tort Claims Act.
* The conviction of a naturalized U.S. citizen from Lebanon who had became an agent for Hezbollah’s external operations arm.
* The 20-year sentence meted out to a former CIA and DIA officer who passed classified information to Chinese authorities.
And of course we have something to say about the finale of Game of Thrones!
In this week’s episode, Steve Vladeck and Bobby Chesney debate and discuss the latest national security legal news, including:
* Iran – The prospect of some form of armed conflict with Iran, and the various legal issues this raises. Among other things, we address the 2001 and 2002 AUMFs, the War Powers Resolution, Article I and Article II War Powers, and UN Charter Article 51. The discussion highlights the central role (legally, politically, and diplomatically) that might be played by a precipitating incident either in the Persian Gulf or in Iraq.
* Military Commissions – While there is no major development to report, we do have an array of smaller decisions on matters relating to recusals, preservation of evidence, and the like.
* SCOTUS – We coin the phrase “starry-eyed decisis” as we explore this week’s portentous stare decisis dispute in the state sovereign immunity case.
* Media and Propaganda – We note a DOJ victory in securing an order requiring a Florida company to register as a Russian agent based on its broadcasting of Sputnik content.
* Honestly, it wasn’t wise to cheat on sanctions – We discuss DOJ’s effort to seize a North Korean vessel (the Wise Honest) that was impounded in Indonesia for sanctions-busting.
* Leak Prosecution – We compare the prosecution of Daniel Hale for leaking classified information to Jeremy Scahill and the Intercept, contrasting the scenario with that involving Chelsea Manning, Julian Assange, and Wikileaks.
* Too Conflicted? DOJ is trying to oust former Deputy AG James Cole from representing Huawei. We discuss this unusual intersection of the DC revolving door with the challenge of protecting classified information in litigation.
Oh, the frivolity? Yes, there was a tv show on Sunday night. Something about thrones and dragons. Your hosts have opinions.
And we’re back! Tune in as Professors Chesney and Vladeck discuss and debate the latest national security legal news, including:
* The legal framework for Congressional subpoenas (and the problems that arise when the Executive Branch is not inclined to support prosecutions to enforce criminal contempt)
* The policy and legal issues raised by an Israeli airstrike on a Hamas facility associated with cyber operations, which occurred in the midst of a massive exchange of rockets, missile, mortars, and more
* A conviction in a material-support-to-IS case in which the support consisted of online recruiting, which raises interesting questions from a First Amendment perspective
* An arrest in a bizarre case in which a contractor engaged in translating wiretaps of a terrorism suspect tried to hide the fact that the suspect was recorded calling, well, the translator
* A guilty plea for a former CIA officer who was recruited by Chinese intelligence through financial inducements
Ah, but all that is just the appetizer. Game of Thrones Episode 4 ran on Sunday night, and these guys are not happy about how it went…
After a one-week hiatus, the NSL Podcast is back! Tune in for debate and discussion as Professors Vladeck and Chesney talk about:
* The Mueller Report and its aftermath
* Impeachment vs Censure
* The Trump Subpoena litigation
* The summary judgment decision in Jewel v. NSA (concerning a would-be class action challenging warrantless surveillance)
* An update on the question of whether Section 215 will be renewed in whole or in part
* The latest ODNI statistics on the use of surveillance authorities (with an emphasis on “unmasking”)
* A wave of recent DOJ prosecution developments involving China and espionage, counterterrorism, and other matters
Oh, yes, there also apparently was an episode of Game of Thrones the other night. A battle of some kind? These guys have some opinions…
This week we debate three timely topics:
* Al Nashiri Part 7,146: the D.C. Circuit has issued a unanimous ruling slamming former Judge Spath for failing to disclose a manifest conflict of interest, slamming pretty much everyone else involved in the process for failing to see that this is a problem, and vacating all of Judge Spath’s hundreds of orders since he put in his application to become an Immigration Judge.
* Hernandez Part II: The Solicitor General has recommended a cert. grant in Hernandez, the cross-border shooting case, on the Bivens question (though not the Westfall Act question).
* Third Party Data and the Impact of Changing Customer and Cultural Expectations: News that law enforcement officials obtained a warrant compelling Google to share customer location data in quasi-bulk fashion draws attention not to the evolving Fourth Amendment, but rather to evolving public expectations about what data companies should hold to begin with.
Oh, and something about some TV show with dragons, zombies, kings and queens, and so on. Have to stay for the frivolity at the end to see what that’s all about.
Live episode! We recorded this morning before a live audience at the University of Texas School of Law reunion weekend. It was a packed house of terrific alumni, and happily the week’s news conspired (pardon the pun!) to give us plenty to discuss. Tune in for a breakdown of:
* Julian Assange: An exploration of the Computer Fraud and Abuse Act conspiracy charge, what this means in relation to long-standing concerns about a chilling effect on the media, how the charge unexpectedly avoids a statute of limitations problem, and what issues might arise with extradition.
* Yemen and the War Powers Resolution: S.J. Res. 7, compelling a withdrawal of U.S. forces from involvement in “hostilities” in relation to the Saudi coalition conflict with the Houthis in Yemen, is on its way to the president’s desk. We parse the legal meaning of “hostilities” in general and in relation to the particular language of this bill, and ask whether this really is a bold moment from Congress or mere window-dressing.
* The Acting DHS Secretary: The switch in leadership at DHS last week proved to be a (temporary) mess because someone didn’t do their legal due diligence. We explain what went wrong and how it got fixed.
* IRGC as a Foreign Terrorist Organization: We explore the legal and practical significance of the State Department designating Iran’s Republican Guard Corp as an FTO, including the impact of 18 USC 2339B on companies abroad that might be doing business with the IRGC. We also note the much-less discussed fact that Treasury made an analogous sanctions decision, under IEEPA, already. And then we draw attention to a bigger question: what does this action reveal about administration thinking regarding whether Iran plausibly can be said to be harboring al Qaeda for purposes of the 2001 AUMF?
Frivolity: Time for some harmony…today we debate the best musical duos and duets of all time.
Bonus: We also have some great Q&A, at the end, with the terrific alumni crowd. Hook ’em!
Join us as Professors Vladeck and Chesney discuss and debate the latest national security law news! This week we’ve got:
* The Adham Hassoun case: Can the government hold a terrorism-related individual in long-term immigration custody after he completes a prison sentence and while it remains unclear to which country (if any) he can be sent?
* The DEA’s Use of Subpoena Authority to Get a Broad Set of Customer Identities from Companies Selling Cash-Counting Machines: Is this, in some sense, a bigger deal than the “bulk telephone metadata” story?
* The Bilal Kareem case: Can Kareem’s suit (which argues the he is on a USG “kill list” in Syria and that this violates the Due Process Clause among other things) survive a motion to dismiss based on the State Secrets Privilege?
* SCOTUS and Cruel and Unusual Punishment: Does the Bucklew decision portend doctrinal change for the 8th Amendment, and perhaps also a “barbell” effect for the post-Kennedy Court?
* The Article II Take Care Clause: What is the difference between declining to enforce a statute on constitutional grounds and declining to defend it in court (and how does any such distinction apply to the White House decision to oblige DOJ not to defend the Affordable Care Act on the individual-mandate and severability issues)?
And just when you think it can’t get any nerdier, it’s time for the frivolity–and for the Thrones Deadpool!
We are back after a spring break hiatus, and we do not lack for things to discuss and debate in the wide world of national security law. Tune in for:
* What we can make of the Mueller Report and the Barr Letter at this point
* Whether the president is subject to civil suit in state court while still in office
* Whether the US government loses its sovereign immunity from suit without consent where the claim involves a violation of a “jus cogens” rule of customary international law, as Judge Brinkema has ruled in al Shimari
* What to make of the Court of Military Commission Review’s newest ruling in the Bahlul litigation, including affirmation of Bahlul’s life sentence
* Whether Congress should pass a statute to ensure that servicemembers have a realistic path to SCOTUS review in cases of courts martial that do not result in the Court of Appeals for the Armed Forces taking their case
* Whether Belgium’s “IHL Exclusion Clause” concept (precluding application of domestic criminal law relating to terrorism as to situations involving armed forces engaged in armed conflict) might end up precluding certain U.S. extradition requests involving material support charges
* Why the release from prison of John Walker Lindh (once famous as “the American Taliban”) might portend a larger debate (and what does this have to do with his Irish grandmother???)
And of course it would not be the same without some frivolity. We’ve got opinions about True Detective Season 3, traveling with infants to LA, the NCAA Tournament, and Hall and Oates. Seriously.
This week’s show features debate and discussion between co-hosts Professors Steve Vladeck and Bobby Chesney regarding:
* Paul Manafort: comparing his first and second federal sentences, and the timing of the new New York State charges
* Yemen: Congress considering a bill to compel an end to US support for the Saudi-led coalition in Yemen, and the President promising a veto
* The Border Emergency: Congress is poised to pass a bill terminating the asserted national emergency at the border, but that too faces a certain veto
* The ARTICLE ONE Act: Heaven save us from awkward, forced acronyms. But perhaps don’t save us from useful changes to the National Emergencies Act? The good, bad, and …incomplete?…about the proposed “ARTICLE ONE Act.”
* The IoT Cybersecurity Improvement Act: We’ve got a brief breakdown of this useful new bill.
* Transgender Military Service and Judicial Deference: Judges Wilkins and Williams have it out in Jane Doe 2 v. Shanahan.
* Habeas for Undocumented Persons in Detention? This case looms very large, and involves a circuit split.
* Once More Unto the Breach…with Larabee II!
* A Double-Jeopardy Windfall? Double-mishandling of double jeopardy in US v. Rice?
* Online Material Support to the Islamic State: The arrest of Kim Vo in Georgia.
And then, just because these two don’t know when to stop, there’s the frivolity: musings about US News Rankings, debate over the college admissions bribery scandal, and a surprise appearance by … Hall and Oates? You make-a-my dreams come true, dear listeners!
So much to debate, so little time! Tune in as Steve Vladeck and Bobby Chesney plow through a host of recent (and not-so-recent) events in the world of national security law:
* Fazaga v. FBI – an important 9th Circuit decision on the interaction between the State Secrets Privilege and FISA, not to mention the question of how the reasonable expectation of privacy test might imply in the context of conversations in a mosque.
* The demise of the USA Freedom Act phone records program? News that the program may have been dormant for the past six months has raised some hard questions at a time when a sunset is looming for it.
* Chelsea Manning and possible charges against Julian Assange or Wikimedia: does this portend Computer Fraud & Abuse Act charges that might enable prosecution of Assange/Wikimedia in a manner that is less relevant for traditional journalists?
* President Trump’s determination to override the IC’s recommendations on security clearances
* The Senate is poised to join the House in voting to overturn the border emergency declaration, but a veto override is unlikely.
* The 200th anniversary of McCulloch v. Maryland
* Today’s Executive Order in which President Trump revokes President Obama’s EO 13732 Section 3 requirement of annual disclosure of airstrike numbers and civilian and combatant casualties outside of areas of active hostilities (i.e., areas other than Afghanistan, Syria/Iraq, and Somalia).
As for frivolity, let’s just say that Winter Is Coming on April 14, and we have a season 8 trailer to parse!
The Oscars may not have a host, but we do! Tune in to our latest episode as co-hosts Steve Vladeck and Bobby Chesney debate a wide range of national security developments from the past week, including:
* May “ISIS bride” Hoda Muthana return to the United States? Secretary Pompeo has announced that she may not, on the ground that she is not a citizen. We review and debate a slew of issues this raises, including the legal frameworks for birthright citizenship, making determinations about citizenship status, expatriation, statelessness, and more.
* Should the State Department formally designate one or more drug cartels as “Foreign Terrorist Organizations,” triggering an array of consequences including making 18 USC 2339B–the famous 1996 “material support” law–relevant?
* Is the D.C. Circuit poised to rule that the Fifth Amendment Due Process Clause (in its procedural aspect) applies at GTMO, and what clues do we glean about this from the decision to deny preemptive en banc review in Ali?
* Speaking of the Fifth Amendment: Does the male-only nature of Selective Service Registration violate the protection against gender discrimination located in the equal-protection aspect of the Due Process Clause, now that women can have combat roles?
But these two can disagree about much more than the law. They’ve got opinions on the Oscars too…
Ready to dive deep, way deep, into the president’s national emergency declaration and the resulting lawsuits? We’ve got you covered. Tune in as Professors Vladeck and Chesney tease out and debate the nuances.
Along the way, enjoy updates on three interesting cert. denials today at SCOTUS as well as the suddenly-looming question of whether the 2001 AUMF’s long-quiet “harboring” provision might be used to provide the domestic legal basis for military action against…Iran?
Your favorite weekly show combining serious debate about the latest national security legal developments with a healthy dose of frivolity is back! [ed. note: this is the only show like that, so you should delete the awkward bit where you claim this is their “favorite]
This week we open at the Supreme Court: What are the stakes in the Larabee litigation concerning the recall of retired military personnel in order to subject them to court-martial jurisdiction? Is there anything to the claim in Hamidullin that U.S. courts should grant combatant immunity from prosecution to a Russian veteran who ambushed US and Afghan forces in 2009? And while we’re talking SCOTUS, what was the deal with lifting a stay in a death penalty case in which a state was not in a position at that moment to provide access to a religious figure of the right persuasion during an execution? [ed. note: guys, guys…stay focused, that’s not exactly a national security case]
The Hamidullin case actually segues nicely [ed. note: Thank you for not writing Segway like you usually do.] to a review of the legal and other challenges that will arise if captured Islamic State fighters are taken to GTMO as part of a larger deal to resolve the fate of a large group of IS fighters currently held by SDF forces. [ed. note: I deleted the line where you made up a claim that an SDF wrote to you to say “Screw you guys in the West, we aren’t going to keep holding IS fighters from your countries if you are going to pull out of Syria and leave us to the mercy of Assad, the Russians, the Iranians, the Turks, etc. Detain ’em yourselves!” No one will believe they wrote you, however accurate that sentiment may be.]
Speaking of terrorists behind bars, we’ve also got the unbelievable situation that recently unfolded in Germany, where a guy served a (comparatively-short) sentence for involvement in a plot to kill Americans in Germany, and the United States had just unsealed an indictment charging him with crimes in Afghanistan including the death of two U.S. soldiers. Extradited to the U.S., right? No, sent to Turkey, apparently based on a double-jeopardy theory. Vas ist das? [ed. note: I changed your, ahem, more colorful sentence to the more-polite “vas ist das.” Diplomacy, guys, diplomacy. After all, you don’t read German and probably have the underlying facts at least partially wrong.]
Well, as long as we are talking about the arrest of terrorism suspects, we’ve got a National Security Division update involving the arrest of two guys who were supporters of Lashkar e-Tayyiba, the Pakistan-based terrorist group responsible for the 2008 atrocity in Mumbai. One of the guys had expressed interest in training to become an executioner, particularly on the beheading side of that line of work.
Next, we have a very quick run-through of the legal issues raised by Project Raven, based on the recent Reuters story describing former NSA employees working as contractors for the UAE’s SIGINT service. Pro tip: If you go to work for the UAE’s SIGINT service, do not act surprised when you find out they are monitoring political critics. [ed. note: This whole bit on the show was just a half-baked recap of what Bobby wrote on Lawfare here.]
But you are in it for the frivolity, no? [ed. note: no, no they are not.] Excellent! Well, we’ve been going to concerts and watching the Grammys, and we have strong opinions about all of it! [ed. note: oh, joy, they have opinions about professional musicians. No doubt they’ll ask you two to tag-team host the Grammys next year.]
This week on the National Security Law Podcast, we’ve got:
* A heavy pace of airstrikes against al Shabaab targets in Somalia
* Ruminations on declining media attention (and the prospect of a sharper dropoff soon) to things relating to GTMO
* A 15-year sentence in an Islamic State material support case
* A magistrate recommends vacating the conviction of Hamid Hayat for ineffective assistance of counsel, some thirteen years after his original conviction under the 1994 material support statute (28 USC 2339A) (in a remarkable example of that statute’s potential scope, about which Bobby wrote here more than a decade ago).
* SCOTUS preview: The Court soon will consider the cert. petitions in Larabee (where Steve is counsel, and which raises questions about the ability of the military to recall former servicemembers to active duty in order to court martial them) and Hamidulin (where the Fourth Circuit rejected a Taliban fighter’s claim of combatant immunity from prosecution).
* The D.C. Circuit’s opinion in Klayman v. Obama, affirming dismissal of an attempt to litigate Section 215 bulk metadata collection (now superseded by the USA Freedom Act) on mootness grounds, and likewise affirming dismissal of a challenge to 702 collection on standing grounds.
And then there’s the Super Bowl. You’ll hear more offense in our breakdown of the game, the halftime show, and the commercials than you saw in the game itself!
Unlike Rent Live, all of our personnel participated in this week’s show! We’ve got:
* The Venezuela Crisis: International Law complications with dueling recognitions
* More Venezuela: “5,000 Troops to Colombia” and Section 1021 of the Ronald W. Reagan NDAA FY’05
* How About Some More Venezuela? The national emergency declaration that has been in place since 2015, and sanctions under it
* The Prospect of Peace with the Afghan Taliban: Implications for GTMO detention litigation (and looming questions of deference)
* From SDF Military Detention to US Criminal Prosecution: Warren Clark is now in Houston, facing charges
* More Terrorism Prosecutions: two other IS-related material support cases, plus big sentences in a domestic terrorism case
* How About Some More Terrorism Prosecutions: A post-game review of the Nashiri oral argument
* Dude, why is our super-secret robot arm in your bag? On the less-widely heralded Huawei prosecution
* More Huawei Prosecutions: Oh yeah, there’s also the one where the CFO is facing extradition from Canada for fraud in re Iran sanctions
* Pretty Soon No One Will Fight Alongside Us: On the Danish court ruling in the Green Desert Case
* Round 74: Arguing about whether DNI Dan Coats should stay or resign
Frivolity: Super Bowl predictions –> Super Bowl halftime shows –> the “live musical” trend –> why didn’t Rent Live have an understudy???
Spread the word about our show, and be sure to give us a rating on iTunes or whichever podcast platform you prefer!
Welcome back to the National Security Law Podcast! Where else can you get both a preview of a looming surveillance law debate *and* a fine-grained debate about how best for the NFL to address blown calls? Well, maybe there’s no market for that…but here we are anyway!
This week, we open with a review of several interesting developments at the Supreme Court, followed by updates on the issues that two separate military commission defendants (Nashiri and KSM) have placed before the D.C. Circuit Court of Appeals, and then a discussion of three FISA-related authorities that expire this December. We wrap up with a short note on the legal implications of the apparent Trump Administration decision to recognize an opposition leader in Venezuela as the legitimate head of government there, and then conclude with an extensive debate about blown calls, instant replay, and overtime rules!
This week on the National Security Law Podcast, co-hosts Bobby Chesney and Steve Vladeck are joined by Michel Paradis (lead counsel for the defense in the al-Nashiri military commission case) and Captain Brian Mizer (learned counsel for the defense in that case). Tune in for an extensive discussion of the upcoming D.C. Circuit Court of Appeals argument (Jan. 22) in the al-Nashiri case, as well as for broader discussion of the state of the military commission system. As an added bonus after that interview, we also return briefly to the topic of a potential “national emergency” declaration by President Trump, in order to go into the details as just what can and cannot be done with money subject to 10 USC 2808 and 33 USC 2293 if and when such a declaration occurs.
Of course, the real added bonus comes with the frivolity at the end. As it turns out, there is more to be said about bagels. And tortillas. And Nick Foles.
Spread the word if you are enjoying the show, and be sure to put in a rating on iTunes or whichever other platform you use. Thanks!
If your New Year’s Resolution involves finding a podcast exploring the legal aspects of major national security events and institutions, we are here to help! Start of 2019 the right way with our first episode of the year. We’ve got:
* Syria withdrawal: We explore the separation of powers between Congress and the President in relation to the withdrawal order and, especially, the possibility of keeping a ground force at al Tanif as a way to counterbalance Iran in Syria. John Bolton says that Article II will do the trick. Will it? Even if so, beware the serious War Powers Resolution “clock” issue that then emerges!
* Syria and detainees: Withdrawal would also have serious implications for Islamic State detainees held by SDF, including–apparently–two US citizens. Some are calling for those two to be brought into US custody at GTMO. What are the full array of options for those detainees, and what pros and cons for each?
* Syria and the UN Charter: If the US stays in Syria but shifts to a counter-Iran rather than counter-IS mission, the international law issues surrounding our role become dicier.
* The resignation of Jim Mattis and the arrival of another acting cabinet secretary
* Paying for the Border Wall by declaring a national emergency: We unpack the issues raised by the potential invocation of the National Emergencies Act and then 10 USC 2808, with an emphasis on the critical role that national security fact deference would play in the inevitable litigation challenging the propriety of invoking 2808. We also explore the looming eminent domain obstacles, and ask the question: If DOD funds *do* get moved around to pay for a wall, what otherwise-funded projects then don’t get built?
* The D.C. Circuit slaps back one nationwide injunction concerning the Mattis Rule on transgender servicemembers, but two other such rulings remain in place. Will SCOTUS grant cert. before judgment?
* SCOTUS also has some important political question doctrine cases it is considering hearing.
* The military commissions took a fresh hit this week when we learned that the replacement for Judge Spath *also* has been seeking appointment from DOJ as an immigration judge. The oral argument at the DC Circuit next week is going to be fascinating…
* Harold Martin, the former NSA contractor charged with retention of national defense information, lost his bid to get the fruits of various search warrants suppressed, but did prevail in getting his statements to the FBI suppressed (lesson: if you cuff the guy and drop him to the floor at first, and control his movements for several hours while excluding access by his partner, you do run the risk of having the whole thing treated as constructive arrest even if you repeatedly tell him he’s not under arrest).
* DOJ NSD takes on Chinese commercial espionage again in two more cases, and gets strong sentences in a pair of Islamic State-related cases.
And then we have the frivolity. Mean Girls. It’s fetch, we promise.
That’s right, we are closing out 2018 with a deep-dive episode on the State Secrets Privilege. From Totten to Reynolds and on to the present day, you’ll want to tune in for this hour-long exploration of the nature, history, and issues associated with ye ol’ State Secrets Privilege!
As for the frivolity? Let’s just say that if you are not a fan of Chevy Chase, you’ll want to skip the final segment.
Interested in the views of Once and Future Attorney General Bill Barr on questions like the power of the president to initiate a war, remove officials, and other hot separation of powers topics? We read his oral history so you don’t have to, along with some other writings, and we unpack it all for you here in Episode 103. For good measure, we’ve also got a close look at the latest GTMO habeas litigant to attempt (vainly, we suspect) to get the attention of SCOTUS, along with notes on recent uses of force in Somalia, DRPK sanctions out of Treasury, and the arrest of the Huawei CFO in Canada (for extradition to face sanctions-avoidance charges in the US).
But as usual we saved the best for last: What is your favorite foreign film? We’ve got about eight of them to discuss, and some common themes emerge. Be sure to hit us up on Twitter (@nslpodcast) with your own favorites!
It’s the most wonderful time of the year! Or at least it’s the most wonderful time of the week, for we’ve just posted the latest episode of National Security Law Podcast! Tune in for:
* Military Commissions — Things are coming to a head in the al-Nashiri case in connection with a slew of questions arising from the fact that the previously-presiding judge for several years was pursuing appointment as an Immigration Judge.
* Iranians Indicted and Sanctioned for Ransomware Attacks — We’ve got coordinated action from the Justice and Treasury Departments, though not custody over the defendants.
* Trumplandia — From Flynn’s cooperation to Cohen’s false statements to the Senate Select Committee on Intelligence, it’s been an awfully busy week in Trumplandia. Meanwhile, the question of whether AG Whitaker is truly the AG has a small chance of coming to SCOTUS much sooner than most expected.
* NSD Update — A U.S. Army Sergeant receives a 25-year sentence in a particularly-scary material-support to the Islamic State case. Whereas run-of-the-mill 2339B cases involving the Islamic State tend to involve people who are trying to go abroad to join IS, this fellow was well-armed and had a stated intent to kill people right there in Hawaii.
* The Senate Resolution on Withdrawing US Forces from Hostilities in Yemen — That bill is suddenly moving in the Senate thanks to increasing angst about the weak White House response to the Khashoggi torture-murder, raising the question whether that momentum can actually result in veto-proof legislation emerging in both houses–not to mention whether it would actually compel any particular change to current U.S. military support to the Saudi coalition given the standard executive branch interpretation of “hostilities.”
And then the real fun begins: College Football Playoff (and Sugar Bowl) predictions. We don’t agree on anything, it turns out. This has the happy effect, of course, of ensuring we get at least some predictions right!
And we’re back, full of turkey and much else besides! We hope you all had a restful and grateful Thanksgiving (or, for our non-American listeners, that you had a wonderful ordinary work week), and are fired up for more national security legal analysis. Today we’ve got:
* The legality of using tear gas at the US-Mexico border
* The bizarre “cabinet order” signed by Chief of Staff Kelly purporting to empower DOD to have the troops deployed to the border use lethal force, brief detention, and brief searches in protection of CBP personnel
* Russia’s armed attack on Ukrainian naval vessels and subsequent seizure, prosecution, and even public-display of Ukrainian sailors
* Hungary’s decision not to extradite a pair of Russian arms dealers to the US (where they would face charges for a plot to ship arms to narcotics cartels), and instead to send them back to Russia
* A fascinating recent trend in which the U.S. Solicitor General has shown surprising willingness to seek Supreme Court review of district court decisions before a Circuit Court has weighed in (including in relation to the ban on transgender servicemembers)
* An update on three recent convictions in terrorism-related cases
* Airstrikes in Yemen, Somalia, Pakistan, and elsewhere: we discuss a recent article by Spencer Ackerman regarding the data on these strikes, and the big picture implications
But wait, there’s more. If you order now, you’ll also receive a wildly-frivolous review of that Christmas classic….Love Actually. Actually Awesome? Actually Awful? A bit of both? Sounds rather like this podcast, come to think of it…
It finally happened: a live episode, on the occasion of our 100th episode! Today we recorded at American University Washington College of Law thanks to the good offices of our friend–and co-host this week–Prof. Jen Daskal. It was a great crowd, and full of entirely-typical frivolity in all respects. You know, like Bobby showing up at the wrong American University campus, notwithstanding Steve’s very clear directions. But, hey, the pizza we ordered for all the attendees also showed up at that other campus, initially, so what can you do…
Well, what was on tap for the centennial? It was a busy slate:
* Apparently there was an election the other night? Wow. Well, according to the live studio audience, the D’s took the House. And so we discussed what this might mean in terms of the inevitable wave of document and witness requests–and, especially, what should we expect when the White House invokes executive privilege or otherwise we see refusals to cooperate. What leverage does the House really have, in the shadow of declinations and pardons?
* We check in with sustaining member Nashiri and the military commissions. Be sure to listen to the latest twists and turns with the ten-layer dip, and enjoy the awkwardness when Bobby criticizes the CMCR before a live audience that might or might not include some interested parties!
* The DNC has sued the Russians for the 2016 hack, but the Russians are now pointing out that pesky Foreign Sovereign Immunities Act. The doctrinal questions here are quite interesting, tovarisch!
* War Powers: We now have access to the DOJ OLC’s 2014 opinion on the domestic source of authority for the Obama Administration to initiate airstrikes against the Islamic State. Buckle up for some Article II action!
* Trumplandia: Say, who is the attorney general these days anyway? Inquiring minds want to know, and we’ve got the details…including predictions on which litigation (if any) will get the question before the courts before 210 days have gone by (listen to find out why that number matters!).
* As for frivolity? Why, we have audience Q&A!
Bottom line: this was a really fun day, as you’ll probably be able to tell! Looking forward to the next live one…who wants to host???
This week we’ve got the concluding episode in our trilogy of deep dives exploring the history and evolution of our foreign-intelligence collection legal architecture (see here and here for the two earlier episodes). Our focus this week?
* Section 702, PRISM, and Upstream: What exactly is this, what are the key points of controversy, and how has it been tweaked by statute recently?
* Section 215, contact chaining with bulk communications metadata, and the USA Freedom Act: Same questions (what is this, what are the points of controversy, how has it been tweaked?)
And in the aftermath of it all, we explore whether we have, from 2013 to today, created a new equilibrium for surveillance law, restoring stability as had occurred previously in 1978.
In today’s episode we take a break from our deep-dive series on the Foreign Intelligence Surveillance Act in order to reengage with the weekly inflow of national security law news. We had no choice, really, for one our sustaining members–Doe v. Mattis–saw dramatic developments. So here’s what we’ve got:
* Military Detention of a US citizen – Erstwhile military detainee and US citizen John Doe has been named! Not only that, but he’s been released to Bahrain. And his passport was cancelled. We’ve got a recap of this remarkable development, and a summary of the larger lessons learned (or not learned) from this near-14 month legal odyssey. Adios, Doe v. Mattis!
* Border deployment – News that President Trump is sending 5200 troops to the border has triggered a wave of references to ye ol’ Posse Comitatus Act, and even speculation about an executive attempt to suspend habeas. Buckle up for some debunking…
* Birthright citizenship – As if the border deployment story is not enough, suddenly we find President Trump also talking about an executive order to revoke or limit birthright citizenship. Prepare for some more fun-with-debunking, as we take a tour through the Fourteenth Amendment and the Supreme Court’s decisions in Wong Kim Ark and Plyler v. Doe.
* Domestic terrorism – The horrific events of the past week lead us to close with comments about domestic terrorism as a core national security concern.
No extended frivolity this week, either. Instead, we close with a special guest offering wise words and a resounding illustration of leadership.
Aaaaand we’re back! Yesterday we posted the first in a series of Deep Dive episodes on the Foreign Intelligence Surveillance Act, covering the origins and early-evolution of the Foreign Intelligence Surveillance Act. Today, we pick up the thread with two critical aspects of the story:
* the rise and (seeming) fall of “the wall” between foreign intelligence and law enforcement investigations; and
* the rise and fall and transformed-revival of the Terrorist Surveillance Program
But wait, there’s more…we figured out early-on in this episode that we will need much more time to cover all that we want to cover. And so this is not the deepest dive we’ll take on the FISA topic. Next week, in episode 98, we’ll dive deeper still in order to complete the transition from TSP to 702, and then to discuss an array of other topics including the bulk metadata story and, inevitably, Snowden.
Meanwhile, plans for our live 100th episode taping in Washington on Wednesday November 14th (12:15-1:45) at American University’s Washington College of Law are in place! The event will be in Yuma Hall Room 401, and the whole thing is thanks to our colleague Prof. Jen Daskal. Thanks Jen. Please RSVP here if you are planning to attend!
And don’t forget — the deadline to get an NSL Podcast t-shirt is Halloween. Order here!
Welcome to part 1 of a 2-part deep-dive series concerning FISA! In this episode, Professors Chesney and Vladeck begin with the history and context leading up to the creation of the Foreign Intelligence Surveillance Act of 1978, and then explain the central features of the statute and some of the key issues that arose during its first two decades. Part 2 (episode 97), which carries the story forward to the present, will post tomorrow!
Oh, hey, while we have your attention: Yes, there was another two-week extension in Doe v. Mattis.
Welcome to the latest episode of the National Security Law Podcast! We’re back with our usual mix of discussion and debate about the most-interesting legal developments relating to national security over the past week. And while most such episodes survey many issues, this week we are drilling down on two stories:
First, we’ve got military commission activity: After a very slow week on this beat, the mil coms are back with a vengeance thanks to the al-Nashiri litigation. We’ve got an extensive review of the recent rulings from the Court of Military Commission Review, exploring issues about the authority of the trial judge to approve (or not) the dismissal of defense counsel, the abatement of the litigation, whether the right to a “learned counsel” is qualified by a feasibility requirement, and–perhaps most significant of all–did the court get it wrong with respect to the burden of proof and discovery procedures when the possibility of monitoring of attorney-client communications emerged. All that, plus “Jenga tower” challenges “10-layer dip” as the official symbol of the mil com litigation.
Second, we’ve got this bizarre story from Aram Roston at Buzzfeed, reporting that an American private military contractor was hired by the UAE to carry out hits in Yemen. It reads like a law exam issue spotter question, so we treat it like one. Does the conduct described violate 18 USC 956(a)? How about 18 USC 2441? Or 18 USC 959? Could some of the people involved be recalled to active duty and court martialed (for killing or conspiring to kill civilians who were not DPH’ing at the time), or perhaps subjected to a Quirin-style military commission? Is there a relevant context of armed conflict? And did the guy quoted in the article not have a lawyer???
But wait, there’s more. Much more: we’ve got Tom Clancy-themed frivolity. Which was the best book, when did the series jump the shark, which movies were best, and which actor played Jack Ryan the best?
It’s a late-night, mid-week episode of the National Security Law Podcast! We’ve got:
* Senator Kaine’s letter to DOD raising questions about the theory of collective self-defense as applied in the domestic law context, in relation to the AUMF and Article II.
* Speaking of the AUMF, it’s the 17th anniversary of the opening of overt US military engagement in Afghanistan.
* Doe v. Mattis is over at last! Just kidding, it’s totally not over. Instead, today was the 7th consecutive extension of time as the parties continue to try to work out whatever it is they are trying to work out. The beat goes on….
* The possible murder of Jamal Khashoggi inside a Saudi consulate in Turkey continues to spark outrage, and so we explore some of the legal questions including the potential application of the Magnitsky Act and also the odd question of how to think about a lethal use of force inside of a consulate from an UN Charter Article 2(4) perspective.
* The remarkable extradition of a Chinese Ministry for State Security case officer, from Belgium to the US, to face charges involving theft of IP from American aviation companies.
* The fascinating question of whether 5 USC 3110 (the Anti-Nepotism Act) would apply were President Trump to attempt to make his daughter the new UN Ambassador, and whether application of the statute in that context would raise constitutional problems.
* The ECHR decision in Big Brother Watch and Others v. United Kingdom, finding that certain aspects of UK surveillance law violate Article 8 (privacy) of the European Convention on Human Rights.
As for the requisite frivolity: we’ve got concert reviews, with Steve weighing in on the Indigo Girls and Bobby reporting back from ACL Fest Weekend One, with both Paul McCartney and Greta Van Fleet on tap.
Spotted: A rare episode of the National Security Law Podcast clocking in at under one hour! And yet there was much to discuss, including:
* T-Shirts!!!! At long last, the much-anticipated NSL Podcast t-shirts are for sale. All profits go to charity (ALS Texas, to be exact; they support patients and research for victims of ALS). Start shopping now!
* Detainee Stuff: We’ve got an all-too-predictable Doe v. Mattis update, and a set of notes about the denial of cert. for GTMO detainee Saifullah Paracha (who made an ill-fated bid to challenge GTMO transfer restrictions as bills of attainder). Perhaps most interesting: the reminder that Justice Gorsuch will recuse on GTMO matters that in some sufficient fashion touched upon his service in DOJ circa 2004-05.
* Courts & Accountability Stuff: The cert. petition in Hernandez II survived the First Monday in October, with the Court calling for the views of the Solicitor General.
* Mil Coms Stuff: The CMCR has emerged with an opinion! But, no, it’s not about the abatement issue, at least not in a helpful way. It’s a ruling about the issues raised by former Judge Spath’s new gig as an Immigration Judge. Tune in to hear the sound of Steve’s head exploding…
* Use of Force Stuff: We’ve got some recommended reading for you: the International Law Association’s long-awaited “Report on the Use of Force.” This document is a handy primer on the jus ad bellum/UN Charter rules relating to force, armed attack, and aggression. We give a brief TLDR, and then use that as a springboard to discuss…
* Staying in Syria to Boot Out…Iran? News that the US military might be tasked with staying in Syria in a post-Islamic State mode (in order to counterbalance or even drive out the Iranian military presence) raises some hard questions both as a matter of the UN Charter and domestic separation of powers law. Your hosts can’t manage to generate much debate over this one; without further facts, it’s hard to see how such a mission could be squared with either set of rules.
* Trumplandia: Both the Rosenstein Watch and the Sessions Watch are at threat condition: yellows. Don’t expect much drama there until after the election, we think.
But nevermind all that, for we have grade-A frivolity this week: What exactly qualifies a movie to be a “Buddy Movie,” and what are the classics of the genre?
And we’re back! Tonight’s episode features:
* SCOTUS preview: though many have missed it, SCOTUS is in fact back in session very soon, and we have a preview of security-related petitions and some early grants as well.
* Trumplandia: Well, Rod Rosenstein sure was the subject of loads of speculation this week, and it soon became quite clear that it is time for…a refresher regarding the TWO DISTINCT chains of succession (and related issues) for his TWO DISTINCT functions (Deputy AG and, quite separately, Acting AG in relation to the Russia investigation).
* The Cybers: Not one but two “cyber strategies” dropped last week. The National Cyber Strategy sure looks like John Bolton did not write all of it, and the DOD Cyber Strategy has some very interesting language relating to something called…”defense forward”?
* Mil Coms: What’s this about conducting hearings stateside???
* DOJ National Security Division updates: a chlorine gas bomb, a NSA security breach, and an unregistered agent of Beijing.
But we know you stuck around for the frivolity, and we’ve got a double-dose this week: MLB playoff predictions, and–thanks to our friends at The Intrepid Podcast–a debate about what makes something a pirate movie. We don’t think that word means what they think it means!
There’s no shortage of news this week, but comparatively little of it is national security law news, and so we are back with a fresh deep dive episode. For better or worse, it’s our longest episode yet (topping out a bit over 1:20). So find a comfy spot, pop in the headphones, and prepare to dive deep, deep, deep into the history of military commissions in the United States! Get ready for Ex Parte Milligan, Ex Parte Quirin, and Hamdan v. Rumsfeld, and much more besides!
Well, would you look at that: your hosts are back in town at the same time at last, and they’ve got a fresh episode covering some of the major national security legal developments of the past couple of weeks! We’ve got:
* A Doe v. Mattis update, naturally
* A new judge for the 9/11 prosecution, for now (but not a year from now, incredibly enough)
* New CMCR judges
* Nothing at all happening with al Nashiri
* Anonymous administration resisters
* Questions (and a cert. petition!) about the constitutionality of recalling retired officers to service in order to subject them to court martial, and some more SCOTUS petitions while we are at it
* The Kavanaugh confirmation hearings (inevitably!)
* John Bolton vs. the ICC
All that, plus some pigskin frivolity (including some pretty wildly-optimistic prognostications).
And we are back…with a second-consecutive deep-dive episode. This week, Professors Chesney and Vladeck explore the iconic 1952 decision of the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, better known as the “Steel Seizure Case.” It’s an all-time classic regarding the separation of powers in general and war-related powers in particular (not to mention constitutional interpretive method, theories of emergency power, and more). In this deep dive, we:
* place the ruling in factual and historical context
* trace the doctrinal threads across the many separate opinions (and, yes, we’ll use the phrase “tripartite framework”…talk about an old chestnut!)
* explore what the Court did and did not actually settle, and what sort of shadow the case has cast over time
* identify the impact of key subsequent rulings (including Dames & Moore v. Regan and Hamdan v. Rumsfeld).
Like last week, bear in mind that this episode was pre-recorded in August (in this case, on Thursday August 23). We’ll be back with regular “current” shows the week after Labor Day!
We are back this week with a new “deep dive” episode, this time focused on the issues raised by the U.S. government’s use of lethal force against Anwar al-Awlaki–a U.S. citizen who became a key figure associated with al Qaeda in the Arabian Peninsula. Tune in for a detailed backgrounder covering:
* the unsuccessful attempt by al-Awlaki’s father to obtain ex ante injunctive relief in federal court (and the standing, political question doctrine, and state-secrets privilege issues that suit raised)
* the unsuccessful attempt by his father to obtain Bivens damages after a drone strike killed al-Awlaki
* the “white paper” the Justice Department produced to give a sense of its position on the merits as to when it is constitutional and otherwise lawful to use lethal force against a citizen in this context, and the Second Circuit’s determination that the government had largely waived privilege as to the OLC memorandum underlying that white paper (and the disincentive this created for further white papers, speeches, and the like regarding internal legal advice/positions)
* the merits of the arguments as set forth in that white paper (Fourth Amendment seizures and Fifth Amendment Due Process, criminal laws prohibiting overseas killing of citizens, and the Executive Order prohibiting “assassination”)
In short, this episode covers a wide-array of topics. One could teach a whole course in national security law based in no small part on just these topics.
Note: there will be no separate episode this week or next regarding events since the morning of Tuesday August 21st (aka, pre-Cohen plea). Steve is traveling, so he and Bobby pre-recorded this deep dive episode as well as next week’s (episode 89) in advance. We’ll be back with a “regular” episode (episode 90) on or about Thursday September 6. One can only imagine what will have transpired by then; both your co-hosts will be commenting via Twitter all the while, of course, so be sure to follow them at @steve_vladeck and @bobbychesney.
And we’re back, with much to discuss in the wacky world of national security law. Join Professors Steve Vladeck and Bobby Chesney as they wrestle with:
* A *huge* ruling by Judge Pohl in the Military Commission 9/11 prosecution, barring the government from using at trial statements made by the defendants at GTMO to FBI “clean team” interrogators (in what amounts to a CIPA-style sanction in response to government restrictions on defense access to CIA personnel)
* The government in the Tanvir case (alleging that the plaintiffs were put on the no-fly list by the FBI as punishment for refusing to become informants) has decided to go for en banc review on the RFRA damages question
* Criminalizing the provision of information about explosives with intent that it be used for a “federal crime of violence”–United States v. Marlonn Hicks as a case study both in First Amendment and vagueness concerns
* Notes on other recent DOJ national security cases (Iranian spies and an IS fighter who made it to the US)
* President Trump, Signing Statements, and the NDAA: How does Trump compare to his recent predecessors?
* John Brennan and Security Clearance Revocations: Are their constitutional limits that can be litigated?
And for your weekly frivolity? Tips for all the 1Ls starting at law schools this fall!
We are back with review and analysis of the latest national security law developments, hot on the heels of last week’s deep-dive episode. We’ll have another deep dive soon, but for now it’s back to some old chestnuts. We’ve got:
* Doe v. Mattis — another delay to report, and some further speculation about the role that passports might be playing in the negotiation.
* al-Alwi — last week we shared a few preliminary reactions to the D.C. Circuit’s al Alwi decision, and now we’re back with an in-depth analysis.
* A circuit-split on a Bivens remedy in cases involving a cross-border shooting: we’ve got an explainer on the relationship between the Rodriguez decision in the Ninth Circuit and Hernandez II.
* PCLOB lives??? A few quick notes on the latest nominations to the PCLOB. If only the Senate would actually confirm some of these folks, this valuable institution would no longer be–wait for it!–inquorate.
* A note on the military commissions: not much cooking here because the Nashiri litigation is held up at the Court of Military Commission Review, but we do at least have a new judge in the case.
* Trumplandia: We mostly resist the temptation to wallow in the Omaraso debacle, and actually keep this segment of the show short for once. Mostly we chat about the fact that four federal judges (now including a Trump appointee) have all rejected claims that Special Counsel Mueller’s appointment is unconstitutional.
* Notes on the National Security Division: We check in with NSD, finding a handful of pleas, sentences, and other developments in national security cases (including the apprehension by the Cubans of an American trying to fly to Russia in the 12th year of his abscondment from alleged acts of terrorism for the Earth Liberation Front…definitely sounds like the plot of a TV show).
And then we just start indulging ourselves with what must be twenty or more minutes of rambling frivolity, starting with some TV and movie reviews and spreading out to cover some books and…NBA projections? Remember: experts on national security law, but nothing else!
It had to happen sooner or later: an actual slow week for national security law! Ugh! Well, time to make lemonade from the lemons. A slow week in NSL news means that we can take a run at a format that we originally expected to be a mainstay for the show: a deep-dive into a single significant development.
In this case, we’re going back to June 28, 2004, and the Supreme Court’s decision in Hamdi v. Rumsfeld. It was a titanic ruling relating to military detention authority, the AUMF, citizenship, due process, and more. In some respects, it was a huge win for the government. In others, it was a huge defeat. We unpack it all, along with a great deal of historical context, over the course of the hour.
And for dessert? Frivolity circa 2004, of course! Buckle up for a stroll down memory lane with the top movies, tv shows, books, and songs of 2004.
We are very excited to have a special guest this week: the one and only Amy Jeffress! Join us as Amy, Steve, and Bobby discuss:
* The cyber provisions in the just-passed NDAA
* Doe v. Mattis (of course!)
* The Mueller investigation
* Rudy and the conspiracy/collusion comment
* Legislating to speak out against NATO withdrawal?
* FARA practice
* 3-D guns, the Arms Export Control Act, ITAR, and USML (no, that’s not a soccer league)
Also, an extensive discussion of where Amy should have dinner while in Austin! Gotta go now, that conversation made us all very hungry.
Welcome to the latest National Security Law Podcast episode. Though Steve and Bobby both have been moonlighting (here is Steve on the Lawfare Podcast and here’s Bobby on the Cyber Law Podcast), there’s no place like home, and both are back in the studio this morning to recount and debate the latest national security legal developments. This week we’ve got:
* The Carter Page FISA Order application: How are these things supposed to work, how does it compare to criminal investigation warrants, what role may hearsay normally play, what are the Woods Procedures and what is all this talk about “verification,” and what should one make of it all?
* Russia, Ambassador McFaul, extradition, and MLATs: President Trump’s flirtation with the Russian proposal for US assistance interrogating our own former ambassador to Russia set off shockwaves. In the background are questions about constitutional protection against involuntary extradition, as well as the rules for questioning witnesses under color of a Mutual Legal Assistance Treaty. We foreshadow a potential litigation dispute should Russia actually invoke the MLAT in this setting and then the Trump Administration fails to invoke the “essential interests” exception to it.
* Revoking clearances to punish (and chill) dissent: In a strong bid for authoritarian impulse of the week, the White House is exploring punitive revocation of clearances held by an array of prominent former national security officials who have been vocal in criticizing the president. Relying on this terrific primer from Brad Moss at Lawfare, we review the legal framework.
* Non-US detainees held by SDF in Syria & potential US prosecution of 2 ex-British IS members: We again note that about a 1000 IS fighters are held in SDF custody in northern Syria, including many European citizens. There’s no chance they’ll stay there forever, so disposition questions abound. A pair of them who had their British citizenship stripped and who are linked to several especially-heinous crimes may well end up in the US for prosecution. But will that be a civilian court or a military commission? And will the British be able to pass relevant information to us for this purpose if the death penalty is on the table?
* Doe v. Mattis draws closer to an end: ACLU and DOJ jointly notified Judge Chutkan that they are working on a negotiated settlement and will report further by July 30 (in time for the next episode, we hope!). If they do a deal, it likely will involve either release into Syria as DOD has requested (but this time with travel documents, perhaps?), or maybe even release to Saudi Arabia or some third country after all.
* Almost another Doe v. Mattis: Turns out Doe wasn’t the only American caught by SDF fleeing IS territory. Last month they captured Ibraheem Musaibli, from Michigan. But instead of transferring him to US military custody in theater, he’s been shipped to the US for civilian prosecution. At the same time, so too has been Samantha Elhassani of Indiana, who had gone to Syria with her kids and her IS fighter husband, and now faces a lying-to-FBI charge.
Oh, you came here for the frivolity? We have a segment that is as solid as a rock. Solid as The Rock, in fact.
Another busy week for the National Security Law Podcast! Buckle up for:
* “The Press Conference” and its aftermath – Your co-hosts agree that it was a fiasco, but they disagree sharply on whether administration officials should resign because of it. Tune in for an extended discussion of the situation involving Director of National Intelligence Dan Coats, in particular.
* Russia indictments before and after – Famously, just prior to Helsinki, the Special Counsel dropped a bombshell indictment against a group of Russian military intelligence officers for election interference-related charges. Then, the day after The Press Conference, DOJ’s National Security Division went public with a distinct case involving a Russian citizen charged with conspiracy to act as a Russian agent in the United States without registering with DOJ (and in that case, the defendant actually is in US custody).
* Doe v. Mattis – Judge Chutkan heard argument last week regarding whether to bar the government from releasing Doe into Syria. The ruling will drop later this week most likely, but why wait? Your hosts speculate on the likely outcome, dwelling on the role of “national security fact deference” and, especially, whether the government can be forced to give Doe a passport or other identity documents.
* Judge Kavanaugh – If confirmed, would Judge Kavanaugh mark a significant departure from Justice Kennedy on national security matters? Your hosts find a bit of common ground here, but plenty on which they disagree.
* Military Commissions – There’s a new issues, involving the Lucia decision, which may have a big impact in Nashiri (and other cases). Is the Convening Authority properly appointed?
* NDAA note: The Conference Committee is finishing its work on the new NDAA, so we’ll delay our coverage of its cyber (and other) provisions until the final text is public.
* GTMO and Periodic Review Boards – An oral argument in the CCR’s renewed-habeas case for a large group of detainees at GTMO took place before Judge Hogan last week, renewing attention to the question of whether a person ever can be released once initially determined eligible for detention there. The Periodic Review Board process has long been the answer to that question, but with uncertainty regarding the willingness of the Trump Administration to actually act upon PRB determinations, the possibility of legislation to stabilize and perhaps empower the PRB system is beginning to get attention.
As for frivolity…Die Hard appears here and there on the show, but the main segment at the end is more of an “extra” than a “frivolity.”
Steve has a discussion of the new supplement for his co-authored casebook (click here for the front matter).
And on Thursday this week, Bobby will be in DC, at the Heritage Foundation, for an event drawing attention to the policy, legal, and technical challenges associated with Deep Fakes. His brand-new paper with co-author Danielle Citron (Maryland) has just gone live on SSRN, here. The event at Heritage, which features a keynote from Senator Marco Rubio, will be livestreamed (12:30 to 1:30 eastern, this Thursday). More here.
We’re back after a one-week layoff! No SCOTUS announcement yet, alas, but we do have this to offer:
* Doe v. Mattis and the upcoming hearing on the government’s plan to release Doe in Syria
* The military commissions and the retirement of Judge Spath
* Over in the civilian court system, Uzair Paracha, convicted back in 2005, just won a motion for a new trial based on newly-discovered evidence (involving CSRT and other statements from GTMO detainees)
* A roundup of other recent DOJ prosecution developments (including the extradition of El Chapo’s successor)
* A deep dive into a set of tort suits involving overseas military activities and the role of civilian contractors, with an emphasis on the role the political question doctrine has played in defeating such cases
* A SCOTUS nomination preview
* Kudos to the Senate Select Committee on Intelligence (SSCI) for its strong report documenting massive Russian intervention in the 2016 election
And, as always, some pure frivolity (including an analysis of the Kawhi Leonard debacle in San Antonio and notes on our favorite things about the World Cup).
Hot on the heels of the Kennedy retirement announcement, we’ve got our special Supreme Court finale episode! This is the show for you if you would enjoy detailed and amicable debate and discussion concerning:
* the consequences of Kennedy’s retirement for national security and other issues;
* what the ideological range might be for the next nominee;
* the Carpenter decision, its nuances, and its implications for foreign intelligence investigations; and
* the Travel Ban decision, the nature and justifications for “national security deference” in that case, how Kennedy may have pulled Roberts into hot water, and especially the Roberts-Sotomayor dispute over the relevance of Korematsu.
Or, you could skip to the end for a review of Solo: A Star Wars Story.
Before getting into the run of this week’s show: Congratulations to Steve and Karen on the birth of their daughter!!!
Meanwhile, in the wild wacky world of national security law, what a week it was. We’ve got:
* Zaidan v. Trump – a remarkable district court refusing to dismiss the constitutional claims brought by a US citizen who alleges that he has been placed, erroneously, on the “kill list” based on alleged ties to al Qaeda in Syria
* Possible expansion of the list of AUMF-covered associated forces to include al Qaeda in the Islamic Maghreb
* Further delays in Doe v. Mattis, with the hearing on the permissibility of release in Syria now set for July 13 and the hearing on the merits still out there in limbo.
* Rejection of the Lee Amendment (on detainability of US citizens and lawfully-present persons) to the NDAA FY19
* Denial of en banc review in Hamidullin
* Periodic reminder that the problem of IS detainees held by the SDF in Syria still is not resolved
* Baker v. Spath – another remarkable district court ruling, this time finding that the chief defense counsel at GTMO is within the personal jurisdiction of the military commission there, but also concluding that Judge Spath cannot impose a contempt punishment without the involvement of the commission panel.
* Judge Pohl’s scheduling order for the 9/11 military commission trial books up all of 2019 for pre-trial proceedings, meaning that the actual trial is not happening prior to 2020.
* The “power to wage war means the power to wage war successfully,” yes, but for goodness sakes don’t cite Hirabayashi for that much-quoted language!
* Convicted Benghazi conspirator abu Khatallah loses on his bid for a mistrial
* A quick run-down of other DOJ national security developments this week includes new charges against a man allegedly responsible for leaking the CIA “Vault 7” materials to Wikileaks and also a Wisconsin woman who allegedly hacked the social media accounts of others in order to promote the Islamic State (including sharing Ricin production instructions).
* The Third Circuit issues an important Suspension Clause ruling in Ocasio-Martinez
* Judge Brinkema rejects a bid by CACI to escape an ATS claim based on a proposed extension of Jesner
* SCOTUS still hasn’t decided Carpenter, Dalmazzi, or the Travel Ban cases!
* Notes on new developments in City of Chicago (nationwide injunctions) and Hernandez II (cross-border shooting)
* Trumplandia: we punt till next week on the OIG Report and … Space Force!
Whew. Time for someone to go change some diapers!
Ok, Steve and Bobby are not actually in Singapore (we sent Dennis Rodman instead). As usual, they’re up on the 6th floor at Texas Law, bringing you the following this week:
* Doe v. Mattis – Because we can’t go a week without some fascinating development in this case. This time, it was the surprise announcement last Wednesday that DOD wants to go ahead and release him after all, but to do so in a way that would drop him off in SDF-controlled territory in Syria. Doe is resisting, and now the long-awaited hearing on the legal merits–scheduled to occur on June 20th–has been replaced by a hearing on this release question. And what will (or at least should) be argued then? Steve and Bobby explore two distinct questions: First, does some version of the Valentine rule forbid involuntary cross-border transfers that are not custodial on the back end (and even if so, should that be the rule with respect to releasing captives from a war zone)? Second, is there a rule requiring that the release meet some threshold of safety and, if so, is that rule satisfied here?
* Boumediene’s 10th anniversary: A decade ago, the Supreme Court decided Boumediene v. Bush. Viewed as a landmark at the time, what has its legacy turned out to be?
* SCOTUS watch: Still no Carpenter, Dalmazzi, or travel-ban decisions.
* The investigation and arrest of James Wolfe: the former head of security for the Senate Select Committee on Intelligence is under arrest for lying to the FBI about his relationship with reporters, with a real threat of further charges for mishandling classified information. The underlying investigation, meanwhile, included acquisition of a reporter’s communications metadata. All of which provides an excellent occasion to review and discuss DOJ’s guidelines governing such journalist-related investigations.
* Trumplandia Road Show: We could hardly ignore this, could we? The Trump-KJU summit produced some significant American concessions regarding security guarantees for the DPRK and a promise to end US-South Korea joint military exercises. But it did not (yet) produce a reduction of sanctions. We explore the authority of the president to do these things, emphasizing the limits on his control over sanctions in this particular setting.
All that pushed us well past the 1-hour mark, so after promising some frivolity involving Steve’s favorite SCOTUS decision of all time, we end up pushing that topic off till next time. Till then…
Hello friends, and welcome back to the latest episode! Last week was a bit quiet, but things are heating up. This week we review and debate:
* War Powers: This week saw the release of the Office of Legal Counsel’s memorandum on the U.S. airstrikes on Syrian military targets in April 2018. We explain what issue it addressed, situate it in context with earlier war power debates, and wrestle over the questions it raises (including, especially, what role if any UN Charter issues should or do play in relation to this constitutional question).
* Doe v. Mattis (of course): A surprising incident involving the accidental monitoring of a phone call between Doe and his lawyers in New York came to light last week. Is it an example of a well-functioning system dealing with a good-faith accident, or a sign of trouble?
* Military Commissions: We have a quick note on an attempt by al Baluchi to get the D.C. Circuit to intervene on an issue relating to evidence preservation (now that the CMCR has turned up inquorate), and we have a CMCR-related Dalmazzi update accounting for a curious government filing before SCOTUS in response to Steve’s letter pointing out that one of the CMCR judges has retired from the military yet apparently still serves on the CMCR in a distinct, civilian capacity.
* The ECHR and CIA Black Sites: A fresh pair of decisions by the European Court of Human Rights condemning member states for allowing the CIA to operate black sites in their territory. Don’t expect any ECHR member state to cooperate on that front, or anything akin to it, in the future…
* The Army Court of Criminal Appeals has denied Chelsea Manning’s appeal challenging convictions on CFAA, Espionage Act, and other charges.
* The District Court in DC has dismissed all claims by Kaspersky arising out of the DHS binding operational directive and the NDAA provision, both banning Kaspersky from government systems. Fun to have an occasion to discuss…Bills of Attainder???
* We’ve got a series of DOJ counterterrorism successes to note (all of them–gasp!!!–involving spies I mean confidential informants)
* Trumplandia: another hot week in Trumplandia, as Team Trump leaks advocacy letters insisting that POTUS cannot obstruct justice, that one (of two) obstruction states does not apply as to the FBI, and that POTUS can pardon himself. Paul Manafort jumps in with some supremely ill-advised witness tampering, just for kicks.
As for frivolity: instead of Weird Al, we bring you a review of…Paul Simon???
This week on the show:
* Another big win for FBI & DOJ in a terrorism prosecution, as a Maryland man gets 35 years for going to Somalia and becoming an unprivileged participant in hostilities for al Shabaab.
* Speaking of DOJ wins: they also picked up a five-year sentence (plus massive restitution) for a Canadian man whom Russia’s FSB hired to help with the massive Yahoo! hack a few years ago.
* Military Commissions: A stunner out of the Court of Military Commission Review in relation to the 9/11 case, as the CMCR declares itself inquorate (drink!) due to the surprise recusal of two more judges. Meanwhile, Steve’s Dalmazzi case (pending before SCOTUS) picks up a useful fact in the form of news that one of the CMCR judges has retired from the military yet continues to serve as a CMCR judge, thus demonstrating the dual-office aspect of the CMCR position.
* Things Congress Empowers Presidents to Do: Among the important national security powers that Congress has conferred on the President are the ability to levy sanctions and to raise tariffs for national security reasons. But just how much discretion does a president enjoy when wielding such powers? Can anyone stop a president from softening sanctions on a Chinese company, or second-guess a decision to increase tariffs on car imports?
* Canada and targeted killing of one’s own citizens: a recently-produced government document confirming the use of lethal force in Iraq/Syria against Canadian citizens who were categorized as IS fighters is raising questions about the legal and policy architecture for the Canadian role in the armed conflict with the Islamic State.
* Trumplandia: Important questions of constitutional law (not to mention policy and ethics) are heating up as a result of the new zero-tolerance policy involving separation of parents from children at the border (even in cases involving asylum applicants). Meanwhile, efforts to pass legislation relating to the Mueller investigation continue to generate constitutional debate, but no signs from the leadership that a relevant bill will be brought to the floor.
But never mind all that: we’ve also got a review of…hit songs with Cold War themes! We’ve got all the colors of a royal flush, and it’s easy to believe that someone’s gonna light the fuse (to be fair, we didn’t light it but we tried to fight it). So if radio’s gonna stay, then get your six-guns at your side because line morale has hit rock bottom and there’s a growing feeling of hysteria! (Think you can identify all 7 of those references based *strictly* on memory (no online research please!)? Send your list to @nslpodcast, with band & song! We’ll happily award you…our hearty congrats!)
Never a slow week in this business…
This week we’ve got breakdowns and debates over some familiar topics:
* Military Commissions: The convoluted proceedings in the al-Nashiri prosecution became a bit less tangled this week, as the government backed off its attempt to preclude intervention by a pair of al-Nashiri’s erstwhile attorneys. Are we any closer to resolving the overall set of issues set off by claims of government monitoring of attorney-client communications though?
* Doe v. Mattis: We are now drawing close to a ruling on the merits of the government’s claim of authority (under the 2001 and 2002 AUMFs) to use military detention with respect to a US citizen the government asserts is an Islamic State member. The issue has been fully-briefed for some time, in fact, and now Judge Chutkan has scheduled a hearing. June 20th will be a big day.
* Al-Shimari v. Duggan/CACI: This Alien Tort Statute suit against a private military contractor for abuse of prisoners at Abu Ghraib has been around forever. The latest? A motion to dismiss based on the idea that the Supreme Court’s recent Jesner v. Arab Bank ruling (precluding ATS liability for suits against foreign corporations involving conduct overseas) should be extended to domestic corporations for actions overseas. Oral argument on June 15.
* GTMO habeas cases: We also note the unfolding litigation schedules for some key GTMO cases (yes, there still are some!), including Hamidullin’s bid for en banc review of his request for POW status. We also check in on the al-Alwi D.C. Circuit appeal and the various petitions grouped under al-Bihani.
* Trumplandia: We go deep on the Intelligence Identities Protection Act in relation to the exposure of the name of an FBI confidential informant who interacted with Trump Campaign members in 2016, and we also wrestle with the authority of a president to direct DOJ to open an investigation in a particular case.
Admit it, though: You’re tuning in this week for an extended debate over the criteria that define a “one-hit wonder,” and to see whether your favorite songs made their good and bad one-hit lists. The question you have to ask yourself is: What do you wanna do with your life?
Spring classes may be over, but national security legal news hasn’t slowed down one bit. This week, Professors Chesney and Vladeck wrestle with the following:
* The D.C. Circuit ruling in Doe v. Mattis (forbidding the government from transferring him unless and until the government wins on the merits in the underlying habeas case). How did the majority parse the doctrine of transfers, why did the dissent disagree, what will happen next, and–by the way–isn’t it clear at this point that he *could* be prosecuted in civilian court under 18 USC 2339B?
* The D.C. Circuit briefing order relating to the al Nashiri military commission case: The “seven-layer dip” case now has about layers, but the Circuit appears poised to take a substantial bite out of it in one fell swoop. Whether this will result in further difficulties for the prosecution or, instead, pave the way to trial, is not yet clear.
* The D.C. Circuit briefing order in Smith v. Trump, raising a mootness problem with an attempt by a deployed servicemember to challenge the government’s interpretation that the AUMF applies to the Islamic State.
* The D.C. Circuit … nah, just kidding, three D.C. Circuit items is plenty. The next item instead is a telling comparison of two unfolding detention issues that are in the news but not the courts. First, we have an ongoing debate (within the administration and also at the diplomatic level) over what to do with the IS fighters detained by SDF in Syria (especially the European citizens). SDF won’t hold these people forever–perhaps not even for long–but no clear plan has yet emerged. Meanwhile, a separate story underscores how little we really know about what happens to captured IS fighters who end up in Iraqi custody, while also noting that the United States has some form of involvement in the resulting interrogations in at least some such cases.
* Quick timeout to recap this week’s new Supreme Court opinions (including notes on severability and on reasonable expectations of privacy).
* The demise of the nuclear agreement with Iran
We do squeeze in a modest dose of frivolity at the end, mostly NBA-focused. But buckle up for next week–and send us your opinions in advance–as we grapple with a classic question: What are the best (or, if you prefer, worst) one-hit wonder songs?
Welcome back to the National Security Law Podcast! This week, Professors Vladeck and Chesney discuss and debate the following:
* Doe v. Mattis: The D.C. Circuit has affirmed the injunction barring the government from turning John Doe over to Saudi Arabia. We don’t have their opinion yet, but we have ours, and we don’t let lack of access to the court’s explanation stop us from discussing at length what is likely to happen next!
* Darbi Day: Ironically, DOD did just transfer someone else to Saudi Arabia: al-Darbi was supposed to be sent there from GTMO some six weeks ago, under the terms of his mil com plea agreement. Well, it finally did happen.
* Gina Haspell’s nomination: Later this week Haspell well testify in furtherance of her contentious nomination to be the Director of the CIA. Bobby & Steve argue a bit about the significance of the pre-hearing battles over disclosure of classified information, and more generally set the stage for a hearing in which it will be fascinating to see how the nominee handles interrogation-related questions both historical and prospective.
* United States v. Hamidullin: We are several weeks late with this one, alas. Well, back in April the Fourth Circuit issued a fascinating opinion refusing to extend POW status, or any other basis for combatant immunity from prosecution, to a Russian Taliban fighter who had been brought to the United States for civilian criminal trial.
* What to make of the ODNI statistical report? ODNI’s Civil Liberties Office has released its annual report showing data on the use of various national security investigative authorities. We debate the significance of many of the key stats, including but definitely not limited to the headline-grabbing numbers associated with acquisition of call-data records under the USA Freedom Act (actually, we mostly agree that those numbers don’t indicate much; the debate is more interesting regarding other stats in the report).
* The Lightning Round of Litigation Updates: We’ve got notes on (a) a possible effort by the government to show that the FISC has no jurisdiction to consider a First Amendment-based claim to compel release of FISC opinions; (b) the Navy recalling a reservist who will now be obliged to serve as the “learned counsel” in the capital case against al Nashiri; and (c) the quiet stipulated dismissal in the steel tarriff challenge brought by Severstal Export.
* Trumplandia: We discuss the Logan Act accusations lobbed at John Kerry, the prospect of a grand jury subpoena to the president (seeking testimony), and the recent hearing before Judge Ellis regarding the scope of the Mueller investigation and its relevance for the case against Manafort.
But let’s face it, the national security legal stuff can get boring after a while. If you listen to the end, it’s because you appreciate the frivolity. And this week, the topic is: What are the top 1990s “teen angst” movies (and what are the qualities that define that category in the first place). We can’t hardly wait to know what you think about that. As for us, we’re clueless.
No shortage of topics this week. Join us as Professors Chesney and Vladeck debate and discuss:
* United States v. al-Hawsawi, in which Judge Pohl rules that a military commission prosecution can proceed against an accused 9/11 co-conspirator based on conduct that facilitated (and thus occurred prior to the culmination of) the 9/11 attacks. What is the measure of when “hostilities” begin? Does the Military Commissions Act of 2009 require a different result than would follow under international law? And for good measure: How does one define membership in an entity like al Qaeda?
* Do recent media reports that “major combat operations” have (again) ended in Iraq have any legal significance?
* What if anything might follow, for purposes of the military commission case against him, from the claim by KSM’s defense team that he may have suffered brain damage while in CIA custody?
* A January executive order gave Secretary Mattis 90 days to deliver a report to the White House recommending the future course of detainee policy. No word yet on whether the deadline was met, by why let that stop us from speculating about its contents?
* Meanwhile, the DC Circuit held oral argument last week in Doe v. Mattis. We’ve got a mini-review, though no one is prepared to predict the outcome.
* Johnson v. CIA, in which Judge McMahon (SDNY) ruled in favor of the CIA on an interesting FOIA exemption issue involving the consequences when the government makes a selective disclosure of classified information to a journalist.
* The “Mueller Protection” bill has emerged from the Senate Judiciary Committee. Now it’s at the part in the Schoolhouse Rock cartoon when the Bill is waiting to see if the leadership will allow a vote…
* And then there are the dueling HPSCI reports on Russia and the election. Perhaps the less said here the better, though there are in fact some interesting recommendations. Should the Logan Act be repealed? Do we need a new FISA “foreign power” category to cover foreign hackers who threaten national security but whose sponsorship can’t be pinned down reliably?
* Speaking of reports, we also have some interesting data on FISC decisions thanks to the mandatory disclosure provisions of the USA Freedom Act. Tune in to understand why the data signifies something a bit different than many observers initially assumed.
But wait, there’s more! If you order now, we will throw in…frivolity! We kept it short this week, because Steve wants to talk Westworld (but Bobby isn’t caught up) and Bobby wants to talk Avengers (but Steve hasn’t seen it). Sigh. They default to the NBA…
We have much to discuss in the world of national security and law this week, including but not limited to the worst-kept secret in the world. And we have some grade-A frivolity if you are able to stay tuned to the end. To wit:
* Doe v. Mattis and the district court ruling enjoining the government from transferring Doe to Saudi Arabia. Wait, what’s that? The identity of the receiving state is a secret? Except that Doe is a Saudi citizen and there are multiple points where the briefing reveals that the plan in question is to send Doe back to Saudi Arabia. Ah well. We’ve got an extensive discussion of the good and the bad about Judge Chutkan’s ruling on the injunction, functioning also as a preview of the oral argument that will occur this Friday morning.
* The capture of 9/11-related suspect Mohamed Haydar Zammar: another high-profile captive with European citizenship in SDF custody in Syria, adding to the importance of determining what will become of those detainees for the long term.
* News of two former GTMO detainees who had been transferred to Senegal, but whom Senegal then sent to Libya–at which point they have disappeared.
* Meanwhile, another 9/11-linked individual (Mohammed al Qhatani) is seeking to use habeas jurisdiction to press for an external medical review of his circumstances.
* In Trumplandia, we’ve got heavily-hyped allegations of classified information in memos Jim Comey wrote; a sprawling lawsuit filed by the DNC against an array of defendants including Russia, the GRU, Guccifer 2.0, Julian Assange, Roger Stone, Wikileaks, Don Jr., Jared, the Trump Campaign itself, and then some. It raises some interesting Foreign Sovereign Immunities Act questions.
* An update on the gradual progress of the Special Counsel protection legislation, and the prospect of an interesting amendment from Senator Grassley.
* We also draw attention to this very handy resource mapping the reactions of various states to the US/UK/FR missile strikes against Syria.
Best (or worst) of all, however, is our finale, as we have an uber-geeky breakdown of a critical doctrinal dispute, a question of categorical definition put in issue by Billboard announcing its list of 100 greatest “boy band” songs of all time. What are the necessary and sufficient conditions to qualify as that kind of band? That’s all for now; bye bye bye!
Well, we’re back, 24 hours after dropping Episode 69. Why? 2018, that’s why!
Seriously, lot’s to discuss:
* A deep-dive into the draft 2018 AUMF from Senators Corker and Kaine. Tune in for a VERY detailed review and debate.
* Meanwhile, Doe v. Mattis has suddenly moved into high gear. Looks like a transfer may be in the works, but we predict weeks of further litigation.
* The Supreme Courts has figured out what to do next in the Microsoft case, and also has issued an interesting void-for-vagueness ruling.
* And President Trump has decided *not* to issue the new Russia sanctions that Nikki Haley recently foreshadowed.
Hopefully that is it for this week!
In light of the amazing developments last Friday, we decided to move the show up to today. Tune in for discussion of five things that happened just that one day:
* A deep dive on the international law framework implicated by the US/UK/FR airstrikes on Syrian government facilities associated with chemical weapons (with a special emphasis on the UK’s asserted humanitarian intervention justification).
* An equally-deep dive into the US domestic law framework governing the use of the military (with a special emphasis on the problem of drawing the line between uses of the military that rise to the level of “war” and those that involve lethal force yet still do not count as war).
* The OIG report on Andy McCabe.
* The ongoing dispute over attorney-client privilege in relation to the search warrant executed at Michael Cohen’s office.
* The flurry of rumors about the imminent firing of Rod Rosenstein.
And if you can hang in for a full hour of that stuff, you’ll be treated to the long-awaited review of…Black Panther! (Of course, you’ll also be “treated” to more celebration of the Amazin’ Mets).
Welcome to episode 68! On tap for this week:
* Tom Bossert is out, and Michael Cohen is in trouble. We’ll talk mostly about the latter, with an emphasis on the way that attorney-client privilege law and procedure interacts with search warrants.
* Fresh CAATSA sanctions, this time targeting Russian oligarchs. The Treasury Department is distinguishing itself as quite strong on Russia issues.
* The Syrian government again uses chemical weapons, and the Trump Administration hints at another military response. We’ll quickly review the domestic legal issues this scenario raises.
* Digression on non-disclosure and arbitration agreements: From whispers of lifelong-NDAs for White House personnel, to stories about law firms requiring summer associates to sign both non-disclosure and arbitration agreements, questions of transparency, procedure, and rights are in the air.
* Renewing the AUMF renewal debate: The Senate Foreign Relations Committee, under the leadership of Sen. Corker, is about to get back in the game. We preview some of the likely issues based on early reports, in anticipation of a bill going public on Thursday.
* Severstal Export (a subsidiary of a Russian steel company) has sued the Trump administration over its steel tariffs, urging the Court of International Trade to treat Trump’s stated national security justification as a pretext for protectionism. It’s a lot like the Travel Ban litigation, but Severstal has lost round 1 already (with the CIT rejecting a request for a TRO).
* Doe v. Mattis and the 72-hour notice-before-transfer requirement: We recap last week’s oral argument, and we also wonder what is taking so long on the underlying merits dispute.
* The military commissions and Nashiri: things just got even more complicated, amazingly.
If you stick around that long, you will be treated to an appreciation of the amazing start to the season for the Amazin’ Mets (including a ranking of their starting pitchers).
Welcome back to the National Security Law Podcast! This week, Professors Vladeck and Chesney review the following recent developments:
* A drone strike against AQIM targets in southwestern Libya: What if anything does this tell us about the Trump administration’s legal and policy positions relating to the geographic and organizational scope of the post-9/11 armed conflict?
* The firing of VA Secretary David Shulkin and nomination of Rear Admiral Ronny Jackson: Questions about the dual-office holding ban and the Vacancies Reform Act.
* Attorney General Sessions and the decision not to appoint a second special counsel.
* New details regarding the formal scope of the Mueller investigation.
* The CLOUD Act: what exactly does it do in relation to (i) efforts by US investigators to compel production of data held by a US company overseas and (ii) efforts by foreign investigators to do the same thing in reverse with respect to US companies operating there but holding data here?
* JASTA litigation: an update on the first district court rulings dealing with the impact of JASTA on the suit brought by 9/11-related families vs various Saudi defendants.
* Oral argument preview: The DC Circuit on Thursday will hear argument in Doe v. Mattis (the US-Saudi dual-citizen held in US military custody in Iraq) regarding the detainee transfer issue.
Oh, and also: a happy review of the revival of Jesus Christ Superstar, which aired Sunday night, and a critical review of the officiating in the NCAA Women’s Final Four!
Welcome back for another episode of the National Security Law Podcast, with Professors Steve Vladeck and Bobby Chesney. It has been another not-at-all slow week. On tap for today:
* The CLOUD Act: It’s now the law of the land. We will go into the law’s particulars next week, but for now we do want to address what passage means for the pending Supreme Court case involving the government’s attempt to force Microsoft to produce data stored in Ireland. Vacate-and-remand, dismiss as improvidently granted, or full steam ahead?
* Military Commissions: Never a dull moment with the commissions! Judge Pohl has received dueling declarations from Secretary Mattis and former Convening Authority Harvey Rishikoff and Legal Advisor Gary Brown regarding the firing of the latter two, and a hard question looms regarding whether an evidentiary hearing will follow. Meanwhile, the Court of Military Commission Review has sent questions to, well, everyone, including Judge Spath. Judge Spath responded quickly, and we review all of it.
* The meaning of “terrorism”: In connection with the recent Austin bombings, the question of what counts as “terrorism” both as a legal and a policy matter has arisen once again. Should there be a new federal crime of terrorism? State laws to that effect? Is the status quo fine? How should journalists talk about violence that causes fear in the community when it is not entirely clear why the perpetrator is carrying out such acts?
* John Bolton and law: A quick note on the new National Security Advisor’s legal and policy orientation
And then there’s the really important stuff: The pros and cons of … fantasy sports in general, and fantasy baseball in particular!
With apologies for short shownotes, here are the headlines for this week’s NSL Podcast:
* The McCabe firing
* The prospect of legislation permitting judicial review of any decision to fire Mueller
* An update of the declaration of Secretary Mattis explaining why he removed the GTMO military commission’s Convening Authority and his legal advisor
* A decision by the Foreign Intelligence Surveillance Court of Review recognizing standing for ACLU and MFIA to press their claim for First Amendment-based access to FISC opinions
* A decision by the Fifth Circuit rejecting the existence of a Bivens cause of action in Hernandez v. Mesa (the cross-border shooting case on remand from SCOTUS)
* A recap of the issues in al Alwi, argued yesterday before the D.C. Circuit (raising questions about the enforceability of a PRB determination that a GTMO detainee should be transferred to Saudi Arabia, and about the continuing existence of detention authority in light of evolving circumstances in Afghanistan)
* The demise, for now at least, of S.J. Res. 54 (calling for withdrawal of US support for Saudi-led military operations in Yemen)
* The Cambridge Analytica/Facebook data privacy mess (excellent post by Andrew Woods on this here)
* The RICO indictment of Phantom Secure for conspiring to support criminal activity through provision of secure communication services (and what this might portend for the Going Dark debate) (Bobby’s post on this here)
And, what you really wanted to know: just what will Bobby and Steve be working on this summer, once classes are over!
So there you are on the beach for spring break, drink in hand and headphones on. Time for some…National Security Law Podcast! We’re back with a special midweek episode because, well, we’ll never keep up with the news if we wait till next week (and we are worried you’ll start listening to music–gasp!–if we leave you alone for too long!).
So here’s what’s on tap for today:
* The executive branch may be getting a bit more unitary as Secretary Tillerson gives way to Secretary Pompeo at State, and Congress may soon be getting tangled in knots as it wrestles with the confirmation of Gina Hapsel to move from Deputy Director to Director of the CIA.
* Prime Minister May has declared Russia’s attempted assassination of a former spy, in the UK, to be an illegal “use of force” against the UK. Are those fighting words? We explore the legal implications, including questions relating to the difference (if any) between “use of force” and “armed attack.” In the end, we contend that this won’t likely matter much in practice, as the real issue becomes whether the UK will impose serious economic sanctions. Speaking of which…
* To the considerable surprise of many observers, the Trump Administration today came out with new Russia sanctions, including a relatively strong statement denouncing Russia for, among other things, interfering in the 2016 election, launching history’s most-costly malware (NotPetya), and the attempted assassination in the UK. The sanctions include action specifically under Section 224 of CAATSA, which is something we’ve been waiting quite a while to see. The Treasury Department, at least, turns out to be on the case.
* Speaking of economic powers of the executive branch: we also have the CFIUS (Committee on Foreign Investment in the United States) process putting a spike in Broadcom’s attempted acquisition of Qualcomm on national security grounds. We provide more history than you could possibly want regarding the CFIUS process, and explain why the prospect of falling behind on 5G proved fatal to this deal.
* Lest we be accused of neglecting our usual topics, we’ve also got coverage of a key counterterrorism legal document: the statutorily-required report from the Trump administration regarding whether and how it may have departed from the Obama administration’s own report on the domestic and international legal architecture for counterterrorism and combat operations. Perhaps not surprisingly, the publicly-released version of the document is anodyne, reflecting more or less a status quo approach.
* We don’t really get into the looming D.C. Circuit oral argument in the Al-Alwi case, which concerns whether the status of the conflict in Afghanistan has changed so as to implicate the Hamdi warning about “unraveling” detention authority. But we do note the case will be argued next week, and provide a extra-mini preview to be followed by a more serious discussion next week.
And then, of course, there’s frivolity. Specifically, March Madness frivolity. Duke and UNC fans will appreciate it, others not so much!
Out on spring break but still listening to the podcast? We love it! Actually, your hosts Professors Chesney and Vladeck are out on spring break too, but before they left town they sat down to record episode 63 on Friday March 9th. If things have gone crazy over the weekend and you are surprised they aren’t discussing them here, well, that’s why!
This week’s show, at any rate, catches up on a number of ongoing sagas:
* The latest twists in the Mueller investigation: Yes, we feel duty bound to talk about the obligation to comply with grand jury subpoenas (looking at you, Sam Nunberg), but we also dig into the surprise emergence of issues involving Erik Prince (of Blackwater fame).
* The military commissions “seven-layer dip” issues in the Nashiri case: We’ve been closely tracking the concatenating issues bedeviling the Nashiri prosecution, originating with a defense team claim about monitored attorney-client communications. This week, a key new detail emerged: the spat began when the attorneys found a microphone in the relevant room (one that the prosecution says was merely an unplugged legacy piece of equipment from prior use of the same room as an interrogation room), but then were directed not to talk to their client about it. We discuss the implications both substantively and procedureally.
* Doe v. Mattis, the American citizen enemy combatant case: Two storylines are in play here. First, we now know which judges will comprise the D.C. Circuit panel that will hear argument on the detainee-transfer issue in early April. Second, the briefing on the underlying legal dispute has developed to the point that we can provide a deeper-dive into the relevant questions.
* The Doe v. Mattis deep-dive on the legal dispute quickly leads to a discussion of judicial deference and the good ol’ Political Question Doctrine. Buckle-up for an extended talk about how these doctrinal threads do or should work together not just in Doe but in other contexts.
Someone on this show still hasn’t seen Black Panther, so we are not yet ready to do our review of it. Instead, those who hang in till the end will be treated to NCAA Tournament Final Four projections made without the benefit of knowing anything about what the brackets will look like. One doubts this will make their predictions any worse than they would have been anyway….
Happy spring break to all!
It’s not every week on this show that we get to talk about the Trade Expansion Act of 1962 and the General Agreement on Tariffs and Trade! And if that’s not an appealing hook to get you to listen, we don’t know what is. Ahem….
Let’s try that again. On this week’s show, Professors Vladeck and Chesney cover a mix of new and old topics:
* President Trump’s invocation of national security to justify new tariffs on steel imports: is it plausible from a legal perspective?
* The war(s) in Yemen, a proposed joint resolution to limit America’s military roles there, and a statement from DOD’s GC providing a snapshot of views regarding the legal issues raised by those roles (including a gesture towards a Commander-in-Chief override argument should such a resolution somehow become law).
* Checking in with our crisis-ridden military commission system: Nashiri’s last remaining attorney argues that the CMCR lacks jurisdiction to hear an interlocutory appeal from Judge Spath’s abatement decision.
* FISA, the FISCOR, and SCOTUS (we love acronyms!): join us for some fed courts nerdistry on the surprisingly-limited pathways for a FISCOR ruling to make it to SCOTUS (prompted by the pending ACLU/MFIA litigation seeking increased transparency for FISC opinions).
* Did HSPCI staff leak a Senator’s text messages? We check in on the growing tensions between SSCI and HPSCI.
* Last (well, last for serious stuff), we take the occasion of the recent Hope Hicks testimony to remind listeners how executive privilege invocations in Congress are supposed to work.
Actually last, frivolity is back, albeit briefly (what an odd sentence). Your mission, should you choose to accept it: What are the greatest TV dramas of all time? Mini-series excluded, but doesn’t have to be broadcast network TV. Listen to the end to see if you agree with our take! And, finally: please spread the word about the podcast!
No shortage of topics this week, but then again there was no shortage last week, or before that, or…ever. So, what’s on tap? Tune in to hear Professors Chesney and Vladeck explore:
* A host of Supreme Court developments, including action relating to DACA, immigration detention and the due process clause, Patchak and the question whether Congress can direct courts to dismiss a class of cases, and-especially-the United States v. Microsoft litigation and the question whether Microsoft can refuse to comply with a warrant where the data in question is held on a server outside the United States. That last topic in turn leads to an overview of pending legislation–the CLOUD Act–that might resolve the issue in an appealing way.
* A host of Military Commission developments, including (in)action on the Darbi plea-based transfer, clarification on the appealability of Judge Spath’s remarkable abatement ruling, and a bold move by Judge Pohl to compel Secretary Mattis to justify the firing of Convening Authority Harvey Rishikof and his legal advisor Gary Brown (in the context of an unlawful command influence motion).
* Suing terrorists–and their banks: a discussion of JASTA, the Anti-Terrorism Act, and the recent Second Circuit ruling in Linde v. Arab Bank.
* The Schiff Memo, the #Mehmo, and more…when will it all end?
* A new case for the Foreign Intelligence Surveillance Court of Review–an appeal by the government from a split en banc FISC ruling finding standing for the ACLU and MFIA to press a First Amendment claim to seek access to FISC rulings.
* And last, but not least, we review some recent letters from State and Defense, sent to Senator Kaine, reviewing Trump administration views on the legal bases for the US military role in Iraq and Syria.
Alas, little frivolity this week. But don’t bet on that to continue!
An over-long episode with a short title to reflect a very busy–and somewhat bizarre–eight day stretch in the wide world of national security law. This week, your hosts Professors Chesney and Vladeck weigh in on:
* The Supreme Court’s decision in Rubin v. Islamic Republic of Iran
* The Supreme Court’s denial of cert. in CareFirst
* The Supreme Court’s telling inaction on the government’s request for cert.-before-judgment in the DACA litigation
* The Defense Department’s failure to transfer al Darbi from GTMO to Saudi Arabia in accordance with his plea agreement (oh how you’ll enjoy the part when Steve reads extended passages from the 2016 NDAA and Bobby narrates the 2014 plea agreement!)
* Judge Spath’s mil com mic drop (“I’m out!”), as well as the military commission prosecutor’s office attempt to secure interlocutory review (spoiler alert: probably should be a petition for supervisory mandamus)
* A short review of the past few weeks of DOJ counterterrorism prosecution results
* The government’s factual case against US/Saudi dual-citizen John Doe, currently in military detention in Iraq, and the question of how to calibrate the burden of proof when it is a citizen
* Mueller’s Russia indictment and what it does (or does not) signify.
All that, plus disparaging remarks about Olympic competitors who do not appear to be skilled, at all, in “their” sport.
We don’t lack for topics this week! In today’s episode, Professors Vladeck and Chesney eat a number of cookies while talking about the following:
* Rachel Brand steps down at DOJ. As George III might say, what comes next? Your hosts review the order of succession.
* A triple update on military commission matters: Was the firing of Convening Authority Harvey Rishikoff linked to a possible plea negotiation with the 9/11 defendants? What’s the deal with the Nashiri trial judge suggesting that the lone remaining defense attorney attend a death penalty training course? And what are the odds that the government goes ahead and transfers Darbi to Saudi Arabia next week?
* Next up: Two (formerly) British men who became especially-notorious ISIS members are now in the custody of Syrian Kurds, and the question of how to deal with them for the long term has arisen. Should they go to GTMO? Back to the UK? Face military commission charges? Or capital charges in a regular Article III court?
* Doe v. Mattis, the AmCit detainee case, now has two tracks. On one, the D.C. Circuit in early April will have oral argument on the transfer issue. On the other, the issues have now been joined on the merits back at the district court. Spoiler alert: it’s mostly about the 2001 AUMF and the Non-Detention Act.
* The #Mehmo and the Schiff Reply: Perhaps social media overreacted a bit to the Trump administration’s refusal to declassify in full the current version of the Schiff Memo. We predict a negotiated outcome resulting in the release of a modified version soon.
* Speaking of the Russians…Kaspersky Lab is suing up a storm! Last December they sued DHS alleging a violation of due process when DHS banned federal entities from using Kaspersky products, and now they are suing the United States government as a whole alleging that a similar rule contained in the recent National Defense Authorization Act amounts to a…wait for it…Bill of Attainder. We review both suits, and tell you which one has stronger prospects (relatively speaking).
Thanks for listening!
Sorry that football season is over? Lucky for you, the National Security Law Podcast has no offseason! And lucky for your co-hosts, the world keeps generating new topics for conversation and debate. This week, Professors Vladeck and Chesney cover four main topics:
* The president’s “treason” remarks yesterday in Cincinnati
* The next stages in the Nunes #Mehmo controversy:
* What precisely must happen under the House rules in order for the Schiff Memo to see the light of day, and what rules and laws might come into play if the White House opposes release?
* Will the FISC be persuaded to publish a redacted version of the original (and successive) FISA order applications involving Carter Page? Can those documents be obtained via FOIA?
* Military Commissions and the firing of Harvey Rishikof and Gary Brown:
* What might this signify, and why might it have happened?
* What does it portend for the huge February 20th deadline for transferring al-Darbi out of GTMO pursuant to his plea agreement?
* Doe v. Mattis status report:
* When is the government’s return due, and what should we expect it to say?
* The government is appealing Judge Chutkan’s order requiring 72-hours notice prior to transfer: what are the prospects for that appeal, and where does the Kiyemba II ruling fit into the mix?
Of course, it wouldn’t be the NSL Podcast without ill-informed digressions. The Super Bowl provides fodder for plenty of that. Listen to the bitter end, if you must, and you’ll hear commentary on Justin Timberlake, the Han Solo prequel, Dirty Dancing, and the game that they played between the commercials.
President Trump has declassified the Nunes Memo and it now is available to the public. Your hosts–Professors Bobby Chesney and Steve Vladeck–give it a deep-dive review here in a special-edition podcast episode. Tune in to hear them discuss:
* whether there are any factual claims in the memo which (*if* true) are worthy of concern (preview: they single out two);
* whether any such concerns extend so far as to call into doubt whether FISC should have granted an order to surveil Carter Page (preview: no);
* whether any such doubt extends to the larger FBI counterintelligence investigation involving Russia (preview: the #mehmo itself underscores that this investigation was well underway already); and
* whether FBI Director Wray should now resign (preview: your hosts disagree.
Be sure to listen through to the very end, by the way; if you are a regular listener, you might be surprised by who gets most fired-up at the conclusion.
Meanwhile: please spread the word about this episode, and the show more generally!
You might not want to watch the State of the Union tonight, but don’t miss this episode of the podcast! This week we cover:
* The missing Russia sanctions? A statute enacted last summer appears at first blush to require the Trump administration to sanction people doing significant business with Russian military and intelligence entities, starting this week. It didn’t happen, and some are alarmed. What did this statute actually require? We’ll explore the situation, walking you through the statutory carve-outs.
* The #releasethememo story evolves: alas, this bizarre topic from last week has not gone away, and with HPSCI now voting to release it seems we are headed still further into the woods. We review the context, explain how this relates to a mounting effort to delegitimize Deputy Attorney General Rosenstein, and why #releasethememo should also entail #releasethedissent.
* Would it be constitutional to empower courts to oversee decisions to remove the Special Counsel? Revelations that White House Counsel Don McGahn threatened to resign rather than convey President Trump’s directive to fire Special Counsel Mueller last summer have drawn renewed attention to two pending bills that would subject such decisions–which according to DOJ regulations must be made based only on a showing of good cause–to judicial review. Would such a law be constitutional? Asking for a friend…
* About that GTMO closure executive order: Several times over the past year, reports circulated that the White House was prepared to issue a GTMO executive order repealing the 2009 Obama order directing GTMO’s closure. It may finally happen this afternoon, in the run up to tonight’s SOTU. Tune in for our predictions as to what it might entail.
* The location of the hidden rebel base: Anyone who watched the Last Jedi should know that sometimes it is possible to track the movement of the military in unexpected ways. Still, who would have guessed your jogging app would be the cause? We note the way Stravagate might inflect perceptions about larger issues involving metadata and third-party data (where is that Carpenter decision, anyway?).
That’s more than enough, but if you want to hear thinly-reasoned takes on the Grammy’s, by all means listen until the end! You go, Gary Clark Jr.!
Happy anniversary, y’all! It’s been one full year since we launched this podcast, and we are very grateful for all our listeners. Here’s hoping there is *less* to discuss in our second year!
This week, we’ve got:
* The FISA Amendments Reform Act: How exactly does the new warrant requirement work, what it do with “about” collection, and how did it approach the question of “parallel construction”?
* #ReleaseTheMemo: What the heck is this all about?
* Must the government have a statutory or treaty basis to transfer John Doe (a Saudi-US dual-citizen held for many months now in US military custody in Iraq, and the petitioner in Doe v. Mattis) to the custody of a third country?
* Travel Ban 3.0: on its way to SCOTUS in what is shaping up to be a blockbuster term.
* The REAL ID Act and the expiration of a key deadline for travelers from certain states and territories.
* The Anti-Deficiency Act and what it means for the pay of military personnel when the government is shutdown.
* A temporary grant of authority to the executive branch to reprogram intelligence appropriations?
As for the usual frivolity: Your hosts were committed to getting the show under one hour this week…and, anyway, they couldn’t think of anything fun for their final segment. Unfortunately, this seems to have encouraged them to digress at unpredictable times during the core program to an even greater extent than normal. Bear with them, it’ll be worth it!
And we’re back, with another weekly dose of national security legal news and analysis. Fresh off the stove this week we have:
* Dalmazzi – Steve is just returned from his first Supreme Court argument, in the Dalmazzi litigation regarding whether military officers may serve both as CAAF and CMCR judges. Tune in to discover why the room erupted in laughter right before Steve began his argument, and to learn why Justice Kennedy wanted to know if Steve thinks Marbury was decided correctly!
* al-Bihani et al. v. Trump – The first grand wave of GTMO habeas litigation largely wrapped up some time ago, but the filing of this renewed petition by a group of 11 detainees reminds us that more litigation is always possible. In this case, there are arguments to the effect that the armed conflict with al Qaeda has ended, and that President Trump in any event has abandoned reliance on the idea of detention solely for the duration of hostilities in favor of permanent detention.
* The FISA Amendments Reform Act – The Section 702 renewal drama is nearing its end. Last week President Trump quietly directed DNI Coats to introduce IC-wide rules on “unmasking,” and he duly complied on Thursday (including rules specific to unmasking of USP identities involving members of presidential transition teams, naturally). Who knows whether that helped pave the way for the Section 702 renewal bill, but it certainly didn’t hurt. At any rate, the FISA Amendments Act has now overcome a Senate filibuster, and should pass later this week and become law at some point thereafter. We wrap this week’s episode, therefore, with an initial close-read of Section 101 of the Act, which imposes a warrant requirement on FBI access to the fruits of 702 collection involving queries using US person identifiers. Suffice to say: it’s complicated.
For better or worse, Bobby and Steve continue to insist on ending the show on a lighter note. This week’s frivolity? Best. Sitcoms. Ever.
In this week’s episode, Professors Chesney and Vladeck take on three sets of issues under the national security law heading:
* ACLU v. Mattis (the US citizen enemy combatant case): Since the last episode, the government has permitted the ACLU to communicate with John Doe, who does indeed want ACLU to pursue habeas relief on his behalf. This quickly led to an exchange of filings disputing whether the currently-pending petition is valid, when the government should have to file its return in response, and whether the judge should renew the ban on transferring Doe in the interim. Your hosts go over all the fine details, and then move on to a rather-extended debate on how the legal merits will play out should the petition get that far (covering issues including the applicability of the AUMF to the Islamic State, and the relevance of Hamdi v. Rumsfeld vis-a-vis the Non-Detention Act as applied to this situation).
* Dalmazzi v. United States: Very soon, co-host Steve Vladeck will be making his first appearance arguing before the Supreme Court of the United States, in Dalmazzi. Your hosts will explore the larger significance of the case, and then talk through a late-developing aspect of the case: whether it presents a classic Marbury v. Madison problem?
* FISA: As happens every week of late, the substantive portion of the show wraps with a review of what’s happening in relation to surveillance law, as we continue to await the results of Congressional sausage-making in relation to renewal of Section 702. This week, the check-in includes not only notes on where 702 renewal stands, but also news about the Supreme Court denying certiorari in a Ninth Circuit case involving the use of 702 fruits in a criminal trial, and a decision by the FISC to certify to the FISA Court of Review an en banc FISC decision recognizing ACLU’s standing to seek disclosure of certain FISC opinions. Whew!
Of course, the good professors can’t leave well enough alone, so for those who are gluttons for punishment you’ll be treated at the end to discordant thoughts on: the riff-off in Pitch Perfect 3, the Golden Globes (both the awards, and the #MeToo overhang), and the likely outcomes in this weekend’s NFL playoff games. If there’s ever a Golden Globe for podcast episodes, don’t hold out hope for this one!
Merry New Year!
2018 is underway, but in today’s episode we are looking back at 2017. More specifically, we are looking back to predictions made in early 2017 regarding the changes President Trump surely would be making to certain executive orders and presidential directives relating to national security. How did those predictions turn out? It’s rather complicated. Tune in to find out what has and has not happened, and why, as we consider the fate of five key documents:
* EO 13491 (interrogation and the US Army Field Manual)
* EO 13492 (GTMO closure)
* EO 13567 (GTMO Periodic Review Boards)
* PPD 28 (foreign persons and US SIGINT activity)
* The “PPG” (constraints on the use of force outside areas of active hostilities)
Next, the discussion turns to larger questions about the general direction of national security law commentary in 2017. Everyone agrees that the Trump Administration has generated a host of novel issues, and that these issues are garnering a great deal of attention from those of us engage publicly on national security legal issues. But not everyone agrees that the latter is a good thing. Some argue that it distracts too much from core issues associated with the use of force and other aspects of counterterrorism and military affairs, while others argue that it reflects an unjustified obsession with and hostility towards Donald Trump. We wrestle with those critiques.
Last (and no doubt least), we have at last both managed to see Star Wars: The Last Jedi, and we wrap with a looooong review (one that is so preposterous that not even Rose and Flynn would go along with it…and that is saying something!).
Well, 2017 is almost done. No doubt there are a few more kicks-in-the-pants on the way before it’s all said and done, but hey, we can at least offer you one final episode of this podcast! So, you’ve got that going for you, which is nice…
Four topics today:
* ACLU v. Mattis – Judge Chutkan has ruled. It’s brief, it’s favorable to ACLU, and it’s got a good shot at … being reversed on an interlocutory appeal, at least in part.
* Section 702 renewal – well, here’s another storyline that will certainly last into 2018. Congress officially kicked the can down the road, extending 702 unchanged until January 19th. Looks like we’ll have something to chat about next month, for sure.
* The first wave of sanctions under the Global Magnitsky Human Rights Accountability Act have arrived, giving us the perhaps-unexpected scene of President Trump issuing an executive order declaring human rights violations and corruption abroad to be national emergencies.
* Predictions for 2018? Sure, why not! Here’s a preview: We will be back with 50+ episodes in 2018, every one of them featuring something about…surveillance, or detention, or war powers, or movies.
Naturally, we end this week–and 2017–with our patented frivolity segment. Our theme? Movies that have significant national security law elements in them. We only mention a couple, so be sure to send us tips on the ones we missed!
Are your other podcasts letting you down by taking a holiday break? Never fear, National Security Law Podcast is here! With two host who would much rather be podcasting than grading exams, you are assured of an uninterrupted holiday stream of national security legal analysis, not to mention ill-informed takes on…movie soundtracks? Seems your hosts may have been in the eggnog a bit early this year. But nevermind that, let’s get to the overview of what Episode 50 has to offer:
* A postmortem on the mixed verdict in the Abu Khattala (Benghazi) trial in late November: The jury acquitted on the most serious charges, but did convict on others. What will this mean, if anything, for the long-running debate regarding disposition options for terrorism suspects? And why did the trial turn out that way?
* The Presidential Transition Team emails produced to the Special Counsel by GSA: Beneath the political aspects, what are the constitutional, statutory, or other legal considerations that should inform this story?
* Still waiting… We’ve been waiting all year to find out what Congress will do with respect to Section 702 renewal, and it seems we will have to wait just a bit longer, for as of this morning there still was no action. Meanwhile, the same is true about the pending motion for jurisdictional discovery in ACLU v. Mattis. Chances are good both of those will see significant developments in the days ahead, so stay tuned for Episode 51 (which we are likely to record on Wednesday next week).
Of course, it wouldn’t be the National Security Law Podcast without a discussion of frivolous matters at the end. This week’s topic: all-time great movie soundtracks. We heard through the grapevine that this would be a contentious discussion…
Happy holidays to all!
In this week’s episode, Professors Steve Vladeck and Bobby Chesney pick up the thread on a handful of familiar issues, and introduce a few new ones as well.
* Interrogation: Their first topic is a blend, actually: the case of Akayed Ullah, who attempted to set off a pipe bomb in New York City yesterday. Ullah was taken into law enforcement custody, but soon some quarters were calling for him to be placed in military custody for interrogation purposes. Your hosts will revisit the tangle of issues involving Miranda, presentment, habeas, and more that such arguments raise.
* Habeas and military detention: Next up is a recap of Monday’s hearing in ACLU v. Mattis, in which the government continues to resist efforts to determine whether a US citizen held as an enemy combatant in Iraq wishes to pursue habeas review, and whether that review can begin now or must await some further development.
* The 2001 and 2002 AUMFs: DOD’s acting General Counsel recently gave a speech outlining the administration’s views on the 2001 and 2002 AUMFs, and the possibility of repeal-and-replace. Your hosts will flag the highlights.
* Somalia: Staying with the AUMF theme, the next topic will explore the legal implications of a New York Times story on plans for expanded operations in Somalia.
* Military Commissions: Last but not least, there are some new charges pending in the military commission system, raising some interesting scope-of-conflict questions.
Of course, that’s not really the last topic of the day. The real last topic? As always on this show, your hosts close with frivolity. This week it is: terrible movies that we nonetheless love. Be sure to hit us up on @nslpodcast to share your own favorites!
In this week’s episode, Professors Chesney and Vladeck catch up with a number of 2017’s most-persistent national security law sagas.
For starters, there’s the indictment and plea agreement of Michael Flynn. What does the charge signify, and what does this imply for the larger Mueller investigation?
This leads directly to a discussion of whether it is possible, as a legal matter, for the President to “obstruct justice” (and how that phrase has both legal and political significance).
From there, your hosts pivot to the slowly-unfolding drama of ACLU v. Mattis, where the district court has now begun to engage directly. The parties for the moment are fighting over the extent (if any) of the court’s authority to order jurisdictional discovery.
Next up is the recent action in the Supreme Court of the United States, where (i) Travel Ban 3.0 just got some very good news, (ii) the Third Party Doctrine looks likely to be shrunk to some degree in Carpenter, and (iii) owners of Persian sarcophagi are watching the Rubin case unfold with bated breath.
Last but by no means least: we’ve entered the final countdown for Section 702 renewal, and rumors are afoot to the effect that the SSCI bill or the HPSCI bill may simply be tacked on to a must-pass legislative vehicle (such as a bill to avert a government shutdown). Your hosts will take a quick look at what the Senate bill does and does not do, with that prospect in mind.
Of course, then you have the trivialities segment. This time its an assessment of the College Football Playoff structure, followed–naturally enough–by a review of…Love Actually.
And…they’re back! Fresh off of Thanksgiving, Professors Chesney and Vladeck are (all too) fired up to discuss the latest national security law news (not to mention a bunch of stuff that just isn’t relevant to this (or any decent) podcast). This week some familiar storylines resume, and a few new ones appear:
First up: The slowly-unfolding saga of the still-unidentified U.S. citizen held in military detention in Iraq. At long last, the district court will hold an actual hearing in ACLU v. Mattis, this Thursday, as a first step towards determining whether the ACLU even has standing to seek habeas review on John Doe’s behalf.
Next: Off to the Supreme Court we go! As an initial matter, the Court has denied cert. in Jaber v. United States, letting stand a D.C. Circuit opinion finding that the political question doctrine bars adjudication of a Torture Victims Protection Act claim by relatives of Yemeni victims of an alleged American airstrike. Then we have a preview of Carpenter (which will be argued on Wednesday), which raises the possibility that the Court will take a bite out of the third-party doctrine at least for cell-site location databases–and, in doing so, set off waves of litigation seeking similar constraints on that doctrine in other digital contexts. Your hosts note that a decision on these lines might well set the stage for litigation testing the notion of a foreign-intelligence exception to the warrant requirement, especially in connection with government access to telephone dialing records under the USA Freedom Act. And the Supreme Court tour then winds up with quick notes on the latest twists in the Travel Ban litigation.
Next up: Back to GTMO, for an update and assessment of a slew of weedy, intertwined issues involving the authority of a military commission judge to compel civilian witnesses to testify, to have the last word on whether defense attorneys can withdrawal, to enforce its views with contempt sanctions, and so much more. All that, plus the question of how the heck to get these issues resolved and the Nashiri case moving forward again.
Last (substantively): A quick review of the CFPB leadership clash, seen through the lens of how similar questions might play out in a weightier context–i.e., if the current Attorney General should decide to make a career move.
Last (ridiculously): I know what you are thinking: You are dying to know what your hosts think are the all-time great submarine-themed movies, and the worst of that lot too. Stay tuned if the phrase “Con! Sonar! Crazy Ivan!!!!” warms your heart!
In this week’s episode, your devoted hosts dig into a bonanza of national security law odds-and-ends.
First up is an en banc decision by the Foreign Intelligence Surveillance Court of Review involving the standing of the ACLU and the Yale Media Freedom and Information Access Clinic to litigate a claimed First Amendment right of public access in relation to FISC opinions. This may not go anywhere in the end, but it’s definitely going to go further than the government wanted.
Next comes the confusion surrounding a Justice Department letter indicating at least some willingness to dig into the Uranium One story and other related matters, which set the Twitterverse ablaze with concern recently. A new special counsel? Your hosts say: don’t bet on it.
After that the show takes up the National Defense Authorization Act for Fiscal Year 2018, which should be signed into law soon. It has the usual GTMO transfer provisions (albeit with something that might be an interesting wrinkle), along with a whole slew of cyber-related sections. One of them expands the long-running Mac Thornberry project of crafting notification rules running to SASC and HASC instead of SSCI and HPSCI) for certain low-visibility military activities (this time: “sensitive military cyber operations). There also are similar oversight-facilitating provisions relating to the military’s process for reviewing cyber “weapons” for international law compliance, and a refinement of the 10 USC 484 system for quarterly briefings on cyber operations. All of which amounts to about .001% of the overall content of the NDAA….
The fourth topic involves a quick review of a recent Senate hearing on the authority of the president to launch America’s nukes, which in turn leads to a quick review of the criminal law–and pardon law–issues raised by the Shane Harris Wall Street Journal story on Mike Flynn allegedly negotiating a $15m payment for help getting Gulen out of Pennsylvania and back to Turkey, perhaps even via rendition. Ah, 2017.
The sensible part of the show wraps with a quick reminder that there still is a U.S. citizen in military detention in Iraq, and associated litigation pending (Doe v. Mattis).
But hey, we all know the real fun comes with the trivia at the end. This week’s topic? Best movie sequels ever. That, and also the worst.
Has it only been a week? Yeesh. Well, we are back! In this episode, Professors Vladeck and Chesney focus on three topics:
* The Mueller investigation and the prospect that Mike Flynn may be charged under the Foreign Agents Registration Act.
* The increasingly-complex saga of the withdrawn defense lawyers in the al-Nashiri military commission case at GTMO. Habeas petitions are sprouting all over the place, and the procedural complexity of the situation is growing by the day.
* An interesting legal and policy question is lurking out there: The use of the “hybrid model” (that is, military capture and initial interrogation, followed by long-term disposition via the civilian criminal justice system) in the Mustafa al-Imam case generated no complaints from the right, whereas the decision to use the civilian criminal justice system for Saipov certainly did. This highlights the fact that we have a comparatively stable system blending military and criminal law enforcement tools for overseas captures, but no analogue domestically. Yet there is a statute, from the USA Patriot Act in 2001 no less, that arguably could function as the domestic equivalent to the “slow boat” that undergirds the overseas-capture hybrid-model scenario. Will it ever be used, and if so what might a constitutional challenge look like?
With that out of the way, your intrepid hosts wrap up with a debate over the greatest comedy films of all time. What’s your top three? Let us know on Twitter: @nslpodcast
And, hey, while you are online, go ahead and give us a review!
We are back, one day after dropping episode 43, with an emergency podcast discussion the legal consequences of the horrific attack that occurred in New York City yesterday. The need for the podcast flows from the President Trump’s statements to the press today regarding the possibility of taking the perpetrator to Guantanamo, his criticisms of the criminal justice process, and statements from Senator Graham emphasizing the need to interrogate the perpetrator without counsel. Meanwhile, a military commission judge has held the JAG General who heads the defense operation there in contempt, confining him to quarters based on an episode in which the civilian defense team for al-Nashiri has withdrawn with his approval. It’s a complicated situation all around, but Professors Chesney and Vladeck are here to walk through it all in this special episode.
Of course, they couldn’t help but add on, at the end, their views of the just-released AP Top 25 for college basketball…
It’s been a busy week in national security law! In Episode 43, Professors Chesney and Vladeck take on:
* Mueller-Time: Indictments against Manafort and Gates, and an even-more important plea deal.
* ACLU v. Mattis and the government’s filing in opposition to an order to show cause why ACLU should not get access to the US citizen held as an enemy combatant in Iraq.
* A new Benghazi case: United States v. Mustafa al-Imam, captured by US forces in Libya (with Libyan government permission/involvement) and now en route (slowly, presumably) back to US for civilian criminal prosecution.
* A quick note on the Senate Foreign Relations Committee’s hearing yesterday on AUMF issues (plus a related note on the federal statute — 18 USC 130f — that requires notification to the Senate and House Armed Services Committees when the military conducts (or supports a foreign partner on) a kill/capture mission outside a zone of active hostilities).
* The blow-up in the al Nashiri military commission, with the commission judge threatening contempt if the would-be-former defense attorneys do not show for a hearing on whether their ethical objections genuinely require withdrawal
All that, plus slick baseballs undermining sliders at the World Series!
This week Professors Chesney and Vladeck start with a close look at Smith v. Trump, a case that seeks a judicial ruling on whether the Islamic State really falls within the scope of the 2001 AUMF. The case presents standing and political-question doctrine issues, and will be argued soon before the D.C. Circuit Court of Appeals. This leads into an update on ACLU v. Mattis (the attempt by ACLU to represent the still-unidentified US citizen held as an enemy combatant), as the court has issued an order to show cause (due Monday) why the government should not allow access-to-counsel at this stage. This is followed by an update on the Travel Ban litigation (giving rise to the title of this episode), and after that the upcoming Bowe Bergdahl sentencing (and, more to the point, the combination of Presidential commentary on the case and a statement from the White House emphasizing the importance of avoiding unlawful command influence). At that point, your hosts come back to AUMF-type issues, in relation to the recent ambush in Niger and subsequent talk about whether the government has kept Congress adequately informed about the geographic scope of its operations. Finally, they wrap with an overview of an obscure part of the pending National Defense Authorization Act bill, one dealing with the third-country effects of computer network operations. Well, that’s the last of the useful stuff. Stick around to the bitter end, and you’ll get an earful of NBA predictions too… (sigh).
If you were unsure about whether your hosts are geeks, this episode will help settle the question. But before we get to what Professors Chesney and Vladeck think they know but don’t really, here’s the stuff they actually do know something about!
First, the Travel Ban. Buckle up, there’s a new nationwide TRO, out of Hawaii, enjoining enforcement of most of Travel Ban 3.0.
Second, a double-shot of the Nashiri military commissions case. The Supreme Court denied cert., seemingly paving the way for that case to roll forward. But not so fast–all the civilian defense attorneys, including their death-penalty expert, have just quit, citing ethical quandaries arising from alleged government surveillance of attorney-client communications.
Third, and speaking of surveillance, the Supreme Court did grant cert. in the Microsoft-Ireland spat, which raises the question whether a “(d) order” under the Stored Communications Act can compel a company in the U.S. to produce data that is within the company’s control but stored on a server overseas.
Fourth, and staying with the technology & statutes theme, there’s a fascinating “hack back” bill now pending in Congress, with the best acronym ever: the Active Cyber Defense Certainty Act, aka the ACDC Act. For those about to legislate, we salute you. And for those who want to know what this bill does, we…well, listen to the show for an introductory primer.
Fifth, and briefly, an update on the status of ACLU v. Mattis, which is the habeas petition the ACLU filed on behalf of the still-unnamed U.S. citizen held as an enemy combatant in Iraq.
If you stuck around this long, perhaps you do have an appetite for bad humor and unwitty pop culture observations. In that case, you’ll perhaps enjoy an argument about the right ranking of the Star Wars films, where the only disagreement turns out to be which was the very best and which the very worst. Or perhaps you fancy using Star Wars as a teaching foil in class? Stick around for some Law of Interstellar Armed Conflict discussions, not to mention the role of Greedo in illustrating the principles of anticipatory self-defense. Han shot first, and that’s all.
In this week’s episode, Professors Chesney and Vladeck zero in on four recent developments involving law and national security.
First, they explore the Supreme Court’s decision not to review the splintered decision of the en banc D.C. Circuit in Bahlul (in which a plurality of the Circuit concluded that it was constitutional for Congress to give military commissions the capacity to adjudicate a conspiracy charge, notwithstanding the government’s concession that conspiracy standing alone was not a violation of the international laws of war). They consider what this means for the commissions going forward, whether the rationale of the en banc ruling is binding or merely persuasive, and what if anything this portends for the still-pending Nashiri cert. petition.
Second, they dig into the habeas corpus petition that the ACLU has filed on behalf of the still-unnamed U.S. citizen held by the U.S. military as an enemy combatant in Iraq. They grapple with the larger significance of the case, its likely future course, and–especially–the procedural and substantive questions raised by the ACLU’s attempt to act as John Doe’s “next friend” in filing the petition on his behalf.
Third, they note the White House’s release of National Security Presidential Memorandum 7, which appears to call for the creation of an expanded interagency information-sharing architecture for distributing (and making possible more efficient analysis of) individual-specific data relating to various categories of national security threat. Some such systems of course already exist, so it is difficult to say from the outside how much this will matter. Still, the possibility that the initiative will lead to new entities having access to various types of intelligence is bound to raise privacy and related concerns of the same type as have been on display lately in connection with Section 702 data.
Fourth, they close the serious part of the show with the decision of the Irish High Court in Data Protection Commissioner v. Facebook Ireland to refer to the Court of Justice of the European Union questions relating to whether there are adequate privacy safeguards when companies like Facebook transfer user data from there to the United States, bearing in mind the ability of the U.S. government to obtain access to that information in some contexts.
Gluttons for punishment will listen on only to find themselves subjected, at no additional charge, to commentary on the MLB Playoffs, Steve Rushin’s fabulous memoir Sting-Ray Afternoons (a sweet and funny Gen X tale of growing up in the 1970s), and the Monday Night Football/Last Jedi halftime collaboration.