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).
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.