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).
It has only been a few days since Episode 19, but Steve and Bobby are worried that fellow national security law geeks won’t have enough @nslpodcast to enjoy during long Memorial Day Weekend roadtrips. That, plus they want to make sure you are up to speed on two big new rulings by the Fourth Circuit Court of Appeals, both of which went against the Executive Branch. First, the en banc Fourth Circuit today issued IRAP v. Trump, in which a majority of the Court agreed to uphold the nationwide injunction a trial judge had issued against the second version of the Trump Administration’s immigration-related executive order (the decision focuses on the Establishment Clause challenge). Second, a Fourth Circuit panel on Tuesday ruled in Wikimedia Foundation v. NSA/CSS that Wikimedia pled sufficient facts to survive the government’s motion to dismiss on standing grounds, in connection with a suit that challenges the Section 702 Upstream collection program on Fourth Amendment grounds. Tune in for Steve and Bobby’s review and analysis of these important decisions in a somewhat-shorter-than-usual episode, as well as a quick recap of last night’s U2 concert in Houston (part of the 30th-anniversary Joshua Tree tour; Bobby had a darn good time).
School’s out for summer…but the National Security Law Podcast keeps trucking along. In Episode 19, we find that the suddenly-student-less professors have used their newfound free time to…wait for it…add music to their intro. And just in case that brief riff is not enough, Chesney and Vladeck do go on to discuss some actual law and policy matters. They start with the appointment of Bob Mueller as a “special counsel,” and go into considerable detail on the nature and origins of that particular office (contrasting it with the more-familiar “Independent Counsel” of Whitewater fame). This leads, inevitably, to a discussion of Mike Flynn invoking the Fifth Amendment in relation to a congressional subpoena for documents (from the Senate Select Committee on Intelligence). Among other things, they survey SSCI’s options for enforcement of its subpoena, noting along the way that the “inherent contempt” power is less fun without ye’ old Capitol Jail (converted into a dining hall, alas, back in the 1850s). Then it’s a brief review of the recent airstrike U.S. forces conducted against an Iran-backed pre-regime force in Syria as those forces persisted in approaching an airbase used by U.S. forces there, distinguishing the legal from the policy questions that strike raised. And finally, there are digressions galore, including a (very favorable) review of All Our Wrong Todays by Elan Mastai and celebration of the fact that Kawhi Leonard made the cut for the NBA MVP Final 3 (well, only Bobby celebrated because, as you may recall, they bet dinner on it). Oh, the also *totally* forgot to follow-through on announcing the winner of last week’s trivia contest, so watch the Twitter feed (@nslpodcast) for that, and stay tuned for it to be addressed on the show next week!
The guys came back to the office tonight for a rare evening recording session, inspired by a combination of hot-off-the-presses news about the president talking out of turn to the Russians, lack of interest in the Wizards-Celtics game, and a general inability to find another time to record this week. And what’s in it for you? An extended discussion of the significance of the report earlier this evening to the effect that President Trump may have shared highly-sensitive classified information with his Russian guests in the Oval Office last week, some follow-up discussion of the Comey firing (with an emphasis on the situation of Rod Rosenstein), an update on the litigation challenging the executive order on immigration, a review of the problems associated with the rapidly-spreading WannaCry ransomware, an attempt by Bobby to steer the conversation away from Spurs-Warriors Game 1 in favor of Spurs-Rockets Game 6 (quickly rebuffed by Steve), and a trivia question for those who manage to hang on until the end. Be sure to share the word about this podcast if you are enjoying it; give us a review on iTunes and elsewhere, and join the conversation at @nslpodcast, @steve_vladeck, and @bobbychesney! And be sure to come back next week, when we plan to have…wait for it…music!
Yes Episode 16 just dropped yesterday, but given the firing of Jim Comey we felt duty bound to get back to the microphones ASAP. And so here you will find Bobby and Steve reviewing and debating the legal and policy backdrop to, and fallout, from yesterday’s shocking news. Tune in for a discussion that covers the power of the president to appoint and remove the FBI Director, the implications of the firing for a variety of ongoing investigations, and much more.
In this episode, Professors Vladeck and Chesney walk listeners through a recent proposal by Rep. Adam Schiff to replace the 2001 and 2002 AUMFs with a new “consolidated” AUMF that would explicitly name the Islamic State while also tweaking current authorities in certain interesting ways. Before that, however, they find plenty of time to argue about the significance of the latest twists and turns involving Sally Yates, Mike Flynn, and Jim Comey, and to forecast the next steps in the unfolding litigation surrounding the Executive Order on immigration. The episode also checks in with some recent developments involving ground forces in Somalia and Afghanistan, not to mention the National Emergencies Act and its application in Syria, Yemen, and Central African Republic. But all that is mere prelude, of course, to an extended appreciation for the music of the Indigo Girls. The episode may not be Closer to Fine, but hopefully you’ll enjoy it nonetheless. And if you do, please rate it and spread the word to others!
In this surveillance-heavy episode, Professors Chesney and Vladeck dig into a raft of news about foreign-intelligence collection authorities. They open with an overview of how Section 702 collection authority works, and then unpack the recent news that NSA is dropping the “about” collection component of Upstream collection under 702. They explain it all, including the obvious and perhaps not-so-obvious reasons for this development. This leads them next to the ODNI’s 2016 Transparency Report, which just dropped and provides a host of fascinating data points about not only 702 but an array of other surveillance/collection authorities. Stay tuned to here them try to convince you that 150 million is not actually a big number! As your reward, you’ll then get a breakdown of an array of recent and looming Supreme Court developments (cell-site data, anyone?), and a wrap-up segment that only Val Kilmer could love.
In this episode, Professors Chesney and Vladeck run through the array of potential criminal charges against Julian Assange and Wikileaks (in light of recent rumblings that DOJ has revived that possibility), and they discuss the prospects for the First Amendment objections that would surely follow. This leads into a discussion of the charges that Mike Flynn one day might face, and that in turn prompts a disagreement about what to make of the White House letter rebuffing requests for information submitted by the House Government Oversight Committee. In other news, the Supreme Court denied cert. in connection with the ACLU attempt to use FOIA to acquire a complete copy of the SSCI interrogation investigative report (aka the “Torture Report”); the Administrative Office for the U.S. Courts released a surprising statistic about applications under Section 702 (with implications for the inquorate PCLOB); a news alert triggers an impromptu discussion of the intersection of conditional spending doctrine and the anti-commandeering rule in relation to DOJ efforts to bring “sanctuary cities” into line with federal policy; and to wrap things up Tyrion Lannister is toppled from his erstwhile status as the top dog in Steve’s pantheon of outstanding TV fictional characters. That, and Bobby claims he’ll answer the question Andy Priest tweeted about, but then he just doesn’t.
Listeners who are tired of listening to just Professors Vladeck and Chesney on this show can take heart! This week they are joined by special guest Matt Tait, better known online as Pwn All the Things. Matt’s presence leads to an extended discussion of the Shadowbrokers dump of exploits allegedly stolen from NSA, the US government’s Vulnerabilities Equities Process, and much more. Meanwhile, there’s a lot happening in the realm of immigration, with a denial of cert regarding a key Third Circuit case (Castro) and the first publicly-reported deportation in a DACA situation. Steve and Bobby also take note that the SOF mission in Uganda–hunting Kony and the Lord’s Resistance Army for the past five years, and setting off important War Powers Resolution issues early on–recently came to an end. Finally: if you wondered which team Steve roots for in the English Premier League, you have to listen all the way through till the end.
In this episode, Professors Chesney and Vladeck go deep into the weeds regarding the legal issues raised by President Trump’s decision to launch missiles at the Shayrat Airfield in Syria, in the wake of the sarin gas attack in Idlib. They discuss that decision in comparison to the 2011 decision by President Obama to use airstrikes in Libya, and along the way grapple with separation of war powers issues, AUMFs, the UN Charter, and the Responsibility to Protect (R2P). After that extensive discussion, they turn their attention to the controversial (and quickly defeated) attempt by Customs and Border Protection to force Twitter to reveal the identity of the user behind @ALT_USCIS (a mock-account that has been critical of administration immigration policy), and they explore the Third Circuit’s Castro decision on the ability of non-citizens to invoke habeas jurisdiction when they are present inside the United States but without authorization (since the Supreme Court will be considering whether to take up this case during its conference this Thursday). Last, Alexander Hamilton makes a surprising but inspired Passover appearance.
In today’s episode, Professors Vladeck and Chesney come to grips yet again with surveillance law and policy issues thanks to the ever-fascinating Trump/Russia story, this time accounting for the President’s accusation that then-National Security Advisor Susan Rice committed a crime. After droning on and on about targeting, minimization, incidental collection, masking, unmasking, and leaking, the professors pivot briefly to Jim Comey’s secret Twitter account and also the removal of Steve Bannon from the list of NSC participants (neither of those stories are really national security *law* stories, they are quick to admit, but you get what you pay for…). From there it’s back to Guantanamo, where the Court of Military Commission Review has hinted that it might not proceed to adjudicate a former detainee’s appeal from a conviction given that the fellow is now in the field with AQAP. That’s followed by a discussion of a new D.C. Circuit opinion on the right of the public to see videotapes of force-feeding of Guantanamo hunger strikers, and a review of the principle of “unlawful command influence” in the context of the Bowe Bergdahlt court martial. And just in case you weren’t sure how geeky these guys are, they wrap with a too-long discussion of Battlestar Galactica (feels like it goes on for a few centars, but it’s really just a few centons).
In this hour-long episode, Professors Steve Vladeck and Bobby Chesney open by unpacking the ins-and-outs of two Guantanamo military commissions cases currently seeking Supreme Court review: the al-Nashiri case (which could give the Court a chance to determine whether an armed conflict existed with al Qaeda prior to 9/11) and Bahlul (which could give the Court a chance to settle, at long last, whether the commissions can adjudicate offenses that do not count as violations of the law of armed conflict). Well, actually, they open by admitting how bad their NCAA brackets turned out to be. But nevermind that. After the military commission stuff, they go on to describe an interesting development at the FISC regarding the standing of the ACLU, and they explain the doctrinal rules surrounding executive privilege claims in light of the dispute between Sally Yates and the Trump White House regarding her prospective testimony about Mike Flynn. They also find time to address the impact of the controversy over civilian casualties in Mosul, and a recent announcement by DOJ involving naturalization fraud committed by Iraqi refugees said to be linked to a terrible episode that occurred in Iraq in 2005 (involving US hostages). Last, they take up a series of questions posed by listeners on Twitter; somehow it results in a discussion of Big Little Lies.
In this episode, [USperson 1] and [USperson 2] discuss whether the law was violated by [USperson 3] when [he/she] spoke to [USpersons 4-17] about alleged surveillance of [USperson 18] or perhaps various [USpersons] working for [USperson 18]’s campaign. They also discuss the appearance at [USuniversity 1] by [USperson 19] in which [he/she] did not talk about [USperson 18], but did have lots of interesting stuff to say about the “going dark” debate. [USperson 1] and [USperson 2] also dig into the question of denaturalization of convicted terrorists, and whether this portends an uptick in such efforts or even an eventual move towards actual expatriation legislation for such cases. Finally, they manage to talk about Ed Sheeran, Game of Thrones, and the impending return of [USperson 20’s] show VEEP, in which art increasingly imitates life.
Episode 8 (about 58 minutes long) finds Professors Vladeck and Chesney discussing the legal, policy, and institutional issues raised by reports that President Trump has authorized CIA to resume control of drone operations in some circumstances, and that he also has added certain parts of Yemen and Somalia to the current list of zones of active hostilities. They also provide an update on litigation relating to the revised refugee/travel executive order. In addition, they take up the topic of “proxy detention” of terrorism suspects, fleshing out the concept and its legal implications. From there they talk about a recent jury conviction of an al Qaeda member, a person whose circumstances might have left him prosecuted instead by a military commission had he been captured earlier (and had Italy not insisted on precluding such a result, as a condition of extraditing the defendant). Last but not least, they note (but don’t get terribly exercised by) the release of security-related materials from Supreme Court nominee Neil Gorsuch’s time at DOJ, and then they wrap up with predictions about the NCAA tournament that almost certainly will prove to be wildly off.
In this episode, Professors Chesney and Vladeck live up to their new motto (see the episode title) by wading into the confusion surrounding a pair of recent presidential claims with significant national security law implications: President Trump’s claim that the Obama administration wiretapped him (or his campaign), and his allegation about the “GTMO recidivism” rate as between the Bush and Obama administrations. This in turn leads to a discussion of the “Vault7” dump by Wikileaks of information on CIA tools for accessing iPhones, Android devices, and so forth, and from there they discuss the new immigration executive order as well (disagreeing as to its litigation prospects). With time running short, they move on to a lightning round touching on the draft Active Cyber Defense Certainty Act (that’s right, it’s the “AC/DC Act”), and an important but little-noticed military commission ruling that seems likely to result in four CIA officers having to testify about the interrogation of al-Nashiri. Things don’t get contentious until the end, when for better or worse they take up the NBA MVP debate. Cornucopias also get a mention, for insufficient reasons.
In this episode, Professors Vladeck and Chesney get into the weeds of the controversy surrounding the statements Attorney General Sessions made during his confirmation process concerning contacts with Russians. Is there a credible case for perjury here? They don’t seem to agree, but you’ll have to listen to find out where they part ways. They also foreshadow future discussions regarding the debate that will occur this year regarding “Section 702” renewal, as well as the Privacy and Civil Liberties Oversight Board. As usual, things come apart at the end, especially when Game of Thrones enters the picture.