The National Security Law Podcast
Summary: 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).
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.
If you have ever wondered what statutes, constitutional principles, and judicial precedents come into play when the U.S. government contemplates transferring an American citizen from our military custody to the custody of another government, this is the episode for you. Building off news reports that the Trump administration is contemplating sending the as-yet-unnamed US citizen enemy combatant to Iraqi custody in order to face prosecution there, Professors Chesney and Vladeck spend much of this episode exploring the ins-and-outs of the legal issues that might arise in that case. They focus in particular on the non refoulement issue, with special attention to the Supreme Court’s 2008 Munaf v. Geren ruling as well as a statute known as FARRA. They precede that discussion with news that the Supreme Court has agreed to hear Steve’s cases involving military officers appointed to civilian office (see here for more), and they follow it with an extended review of the extremely-interesting (and potentially quite-controversial) issues that might arise in the event of an acquittal in the currently-ongoing prosecution of Abu Khattala (the alleged mastermind of the Benghazi attack). The latter discussion focuses on the likelihood that Khattala would immediately come into ICE’s custody pending removal, possibly with the aid of the not-yet-used Section 412 of the 2001 USA PATRIOT Act. Such a result might well in turn result in a new form of indefinite, long-term, non-criminal detention, but then again the administration might also choose at some point to shift Khattala into military custody (perhaps within the United States, ala Jose Padilla, or perhaps even at GTMO). Towards the end of the show, Steve and Bobby tout the fascinating new podcast project from Prof. Eric Muller chronicling the human stories associated with the Japanese Internments and Removals of WWII, known as Scapegoat Cities. Then they wrap up with a series of bone-headed predictions about the MLB playoffs, proving there are some serious gaps in their expertise…
Seriously, how did they manage not to say “posse comitatus” during this episode? Sigh. In this week’s episode, Professors Vladeck and Chesney do talk at length about various legal issues raised by the devastation in Puerto Rico, including the possibility of an Insurrection Act invocation. In addition, they renew attention to the as-yet-unnamed U.S. citizen who apparently remains in U.S. military custody as an enemy combatant in Syria or Iraq, urging the media to keep a focus on this important situation. On a related note, they also explore the significance of the Trump administration’s potential revisions to the Obama-era policy guidance regarding the use of lethal force outside of areas of “active hostilities.” From there, they pivot to a review of the special birthday party the Senate Judiciary Committee through to celebrate Steve’s birthday yesterday, which took the form of a hearing on the constitutionality and desirability of a pair of bills that would help to further insulate the special counsel position (and, thus, Bob Mueller’s investigation) from removal without adequate cause. And then they close with an update on the Travel Ban litigation, noting that the critical issue at this juncture is whether SCOTUS will vacate the relevant circuit decisions or let them stand. Well, they “close” with that in the sense that this is where a reasonable listener would tune out…but, for those who are gluttons for punishment, you can listen through to the end and be treated to musings on the new Star Trek series, the rapidly-unfolding NCAA basketball scandal, and the relevance (or not) of the Cavaliers signing Dwayne Wade. Caveat audientis (or something like that…)!
In this week’s episode, Professors Chesney and Vladeck explore three big national security law developments from the past few days. First up: the news that the FISC, on two separate occasions, issued orders authorizing surveillance of Paul Manafort’s communications. Second: the news late last week that an as-yet-unnamed American citizen fighting for the Islamic State in Syria is now in US military custody and being held as an enemy combatant. And third: an update on the travel-ban litigation as it moves into the Supreme Court. All this, plus a random smattering of frivolous commentary on everything from the UT-USC game to the new Star Trek series. (I know, I know, but they just insist on that stuff…don’t let it deter you from listening to the parts of the show when they actually know what they are talking about)!
We have a special treat in this off-cycle episode! NSA GC Glenn Gerstell is in Austin to speak to our students here at UT, and (no doubt against his better judgment) he agreed to sit for an interview with Professors Chesney and Vladeck. The conversation focuses in particular on the nature, operation, and criticisms of Section 702 collection authority. As you probably know, Section 702 is scheduled to expire at the end of December, and there is certain to be a fascinating, high-stakes Congressional fight over its renewal in the months ahead. Tune in for our discussion of targeting, minimization, “backdoor” searches, database queries, masking, unmasking, and many other key elements in the debate!
Will this year’s Supreme Court term be packed with cases relating to military courts? In this week’s show, Professors Chesney and Vladeck explore the possibility. The Supreme Court currently has before it an array of petitions for review involving military court questions. The Bahlul litigation presents a complex but deeply-important set of questions relating to the ability of the military commission system to adjudicate conspiracy charges, intermixed with procedural questions about the standard of review should the Court choose to get involved. The Nashiri litigation, for its part, ultimately presents the critical question of whether an armed conflict existed with al Qaeda pre-9/11, and the Supreme Court currently must determine whether that issue should be resolved pre-trial or if, instead, the process must unfold through trial first. And then there a mix of cases, including a large group of servicemembers who were convicted by court martial, presenting the question whether active-duty officers can serve as judges of the Court of Military Commission Review without violating an 1870 statute that creates a baseline rule against officers serving in civilian government positions. Whew! But, hey, if you are not into such questions, perhaps you’ll stick around to find out which band Bobby saw last Friday night, and which football team greatly disappointed Steve on Sunday night!
In today’s episode, Professors Chesney and Vladeck spend time with three legal topics (before spiraling off into some ill-informed commentary on the college football season). First, building off a report that FBI arrests of Islamic State supporters inside the US have declined significantly recently, they discuss why such a change may have occurred and what it signifies for the role of law enforcement in counterterrorism policy. Second, they check in on the progress (ahem) of the pre-trial proceedings in the military commission case involving the 9/11 conspiracy. The trial judge recently offered January 2019 as a trial date trial balloon, which leads your hosts into an extended discussion of the odds of that happening–and the many complications that factor into that question. Third, on the theory that decisions to enforce or not enforce various aspects of immigration law pertain to the larger topic of presidential power, they dive deep into the DACA controversy. If you are looking for a walk-through of the basic legal issues, and some speculation about how things may play out, this is what you need. Oh, and as I mentioned, they seem to think they have some neat insights into college football, so if you like that sort of thing–or if you just want to hear them wallow in the pain of UT getting smacked by Maryland in its home opener–stick around for the final ten minutes.
In this week’s episode, Professors Chesney and Vladeck take advantage of a relatively quiet week for national security law developments in order to range across a number of topics. Being in Texas, we are all quite focused on the terrible tragedy unfolding thanks to Hurricane Harvey, and so your hosts open with a survey of various legal issues that could have arisen in the context of this emergency (though, fortunately, none seem to have). Then, noting that today was the first day of class at Texas Law, they discuss whether their respective Constitutional Law courses will or should be different this year in light of controversies associated with President Trump. They also take note of the latest North Korean missile launch and use that as a basis for discussion the line between self-defense and offense–in relation to Japanese law. And they also comment on the surprise settlement in the case brought against the private sector psychologists who designed the CIA’s Enhanced Interrogation Technique program. Finally, and inevitably, they review the season finale of Game of Thrones (including a digression into such important questions as: do the wights possess human rights?).
Never a dull moment in 2017. In this week’s episode, Professors Vladeck and Chesney take on four topics (well, four relevant topics…do try to stay with them past their musings on home runs at the Little League World Series). First, they unpack the part of President Trump’s Afghanistan speech in which he promised to loosen “rules of engagement,” construing it as a pledge to further relax Obama administration policies regarding the scope of permitted targets in Afghanistan, the permissible roles for U.S. ground forces, and the range of situations in which permission must be obtained from POTUS or SecDef. They place those possible changes in context with similar adjustments in 2014 and 2016, and discuss their implications for the AUMF debate as well. Second, they note a report (by Charlie Savage and Adam Goldman) in the New York Times to the effect that President Trump is drawing close to signing a new executive order on the fate of Guantanamo (and, indeed, that he nearly signed it three weeks ago). This leads to a discussion of what we should all be looking for in whatever GTMO order emerges (for example, will there still be Periodic Review Boards?). Stay tuned on that subject. Third, they discuss the D.C. Circuit’s recent ruling requiring Judge Scott Silliman to recuse from the Court of Military Commission Review in relation to the 9/11-focused military commission case (a discussion that leads to a more-general conversation about whether it makes sense even to have the CMCR going forward). And fourth, they discuss the uber-fed-courtsy (yes, that is a phrase now!) question of whether the Judicial Power under Article III extends to injunctions directed to the President himself. The key case there is Mississipi v. Andrew Johnson, and the principle is of self-evident importance–but not self-evident current vitality. But wait…don’t stop at that point! Surely you have not had enough Game of Thrones talk yet? Whew, good. Stick around for their review of the Zombie Rendition episode (aka GoT episode 6), in which they complain about temporal implausibilities, stupid strategies, and tactical blunders in the world of Westeros.
In this week’s episode, Professors Chesney and Vladeck make a whole series of blatantly un-Mirandized statements about some of the latest national security law developments. First, they take up a number of questions relating to the events in Charlottesville. Was the murder an act of “domestic terrorism”? What does federal criminal law have to say about domestic terrorism? How does this situation compare to Monday’s news of a man in Oklahoma City who sought to set off a bomb ala Timothy McVeigh? And what issues arise when heavily-armed self-styled militias take to the streets in these settings? Second, they give a quick review of the controversial search warrant issued by a judge in Washington, DC, to the web hosting service Dreamhost (seeking information about visitors to a website that helped organize protests that turned violent during the Trump inauguration). And third, they explore a brand-new opinion from the district court in United States v. Abu Khatallah. That case arises out of the Benghazi attack, in which the defendant was captured in Libya and then transported to the U.S. (to face criminal charges) on a U.S. Navy vessel. Along the way, the defendant initially was interrogated without Miranda warnings, and then an FBI clean team eventually took over. In today’s opinion, the district court rejected the defendant’s motion to suppress the “clean team” statements, rejecting the defendant’s arguments involving delayed presentment, voluntariness, and compliance with Miranda. Your hosts seem to agree: a win for the government on the surface, yes, but signs of trouble for future cases are there too. This is followed by some quick responses to listener questions, and then, because they can’t leave well-enough alone, they conclude with the inevitable segment on Game of Thrones.
In this bizarrely-titled episode (ok, they pretty much all have bizarre titles, Professors Vladeck and Chesney take on four national security law developments from the past week. First, they explore the district court ruling in Salim v. Mitchell, in which the court rejects cross-motions for summary judgment in an Alien Tort Statute suit brought by former CIA detainees against the two psychologists who designed and helped implement the “enhanced interrogation techniques” program. Second, they unpack the meaning and significance of last week’s press observation held by Attorney General Sessions, in which he warned that DOJ and FBI will be ramping up their anti-leak efforts (of course the real lesson for reporters from this whole episode is: probably better not to call these professors, lest they talk your ear off about Game of Thrones). Third, they offer some preliminary thoughts on the legal issues that will arise if the US does begin using airstrikes against Islamic State targets in the Philippines, as recent media reports have suggested might occur. Fourth, they drag us all down into the weeds of treaty law–especially the “non-self-execution doctrine”–in connection with the Ninth Circuit’s opinion rejecting an attempt by the Marshall Islands to get a court to declare the US government in violation of its obligation (under the Nuclear Non-Proliferation Treaty) to negotiate in good faith towards nuclear disarmament. One might hope they’d be exhausted at that point, and end it there. But no, they trudge on, sharing their “insights” about the latest episode of Game of Thrones at remarkable length. Happily, GoT’s current season only has a few shows left, so soon your hosts will have to move on to something else!
This week’s episode certainly has a military theme. Professors Chesney and Vladeck start off with a surprisingly (or is it disturbingly?) lengthy discussion of the writ of mandamus litigation currently pending in the D.C. Circuit Court of Appeals in connection with military commission proceedings. It’s like sitting in a Fed Courts class, except with worse jokes (doesn’t matter who your professor is, she or he surely was funnier than this). Then again, the topic turns out to be rather important for the larger questions surrounding the ability of the military commission system to move forward, so maybe it’s worth it. Maybe. Stick around, though, and you’ll be treated (again, probably not the right word) to an overview of the IHL/LOAC issues that were on the table at the recent Transatlantic Dialogue on International Law and Armed Conflict, which will give you a bit of perspective on the sort of questions that law of war experts think are especially interesting these days. That’s followed by a civil-military relations discussion, one that pays particular attention to the origins and evolution of the statute that forbids serving military officers from holding certain civilian government positions (a cheap ploy to bring the recent Trump administration personnel moves within the scope of the podcast? maybe so, my friend, maybe so). Last, and least, the good professors wrap with a spoiler-packed review of Game of Thrones Episode 3, which aired a few days ago. One of these guys thinks that Tyrion’s reputation for strategic acumen is super-overrated…
In this week’s episode, Professors Chesney and Vladeck focus on two subjects: the extradition of Ali Damache and what it might portend for Trump administration counterterrorism policy, and the slate of issues surrounding the potential removal of Attorney General Sessions. The Damache case is interesting on its own terms in light of the underlying crime (a plot to kill the Swedish artist Lars Vilk, including the recruitment of three Americans to the conspiracy), and also because Ireland previously refused extradition of Damache on the ground that he would likely end up in the SuperMax in Colorado and there experience inhuman and degrading treatment (in the form of prolonged solitary confinement). Spain had no such qualms, and now Damache faces charges in Philadelphia. Meanwhile, speculation is mounting that President Trump is eager for Attorney General Jeff Sessions to resign, and that Sessions might be fired if he won’t go of his own accord. Your hosts walk through the three major pathways to removal, each of which has its own set of legal and political complications. Finally…it may be summer in Austin, but it’s winter in Westeros. Inevitably, this leads Steve and Bobby to close out the episode with their oh-so-expert comments on the first two episodes of Game of Thrones Season 7.
Want a thorough backgrounder on the 2001 Authorization for Use of Military Force? This is the episode for you. (This also is the episode for you if what you want, instead, is an hour of legal blather followed by five minutes of speculation about Season 7 of Game of Thrones). The “AUMF” is the key statute on which the government relies for its post-9/11 uses of force relating to terrorism, and it has been the source of controversy and debate for the better part of the past sixteen years. This week’s episode focuses exclusively on it. Professors Vladeck and Chesney first explain how it fits into larger legal debates about the separation of powers in our system. Next, they review some of the key historical developments leading to its passage. Then they describe the fight in September 2001 over how broad it ought to be. Then they talk about key legal rulings construing its scope in the years that followed. Then they talk about how the evolving circumstances of counterterrorism–particularly the emergence of entities like AQAP and the Islamic State–have heightened questions regarding the continuing relevance of the AUMF. Then they describe some of the proposed legislative fixes (and why they have not moved forward). Then they…oh, I give up, you have the general idea, it’s quicker just to listen!
In today’s episode, Professors Chesney and Vladeck focus on three sets of issues. First, they explore the D.C. Circuit’s June 30th ruling in Jaber v. United States, in which the court on political question grounds affirmed dismissal of a suit seeking damages in relation to a 2012 drone strike in Yemen. If you are into the political question doctrine, well, that’s kind of scary but the important thing is that you’ll enjoy the discussion. If you don’t enjoy getting into the legal weeds of justiciability, that probably reflects well on you but you will hate this part of the episode. Moving on… Next, your hosts debate the criminal law implications of recent revelations about a meeting between a Russian lawyer and Donald Trump, Jr. (as well as Paul Manafort and Jared Kushner), involving an expected offer by the Russian to give derogatory information about the Clinton campaign. Did it violate campaign finance laws? Is the real legal story here about failing to disclose the conversation? Finally, Vladeck and Chesney dig into a trio of developments relating to military commissions at GTMO. What did the Court of Military Commission Review recently say about the statute of limitations for war crimes, and why is that a hard question? Why is Canada giving millions to Omar Khadr, and what is the controversy surrounding the military commission charge known as “murder in violation of the law of war”? And what is up with a military commission judge calling a halt to proceedings because of…a boat? Oh, and be sure to stay tuned to the end, when your hosts hand out their midseason MLB awards. Just think, starting next week you are going to have to put up with them dissecting Game of Thrones episodes…ugh….