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).
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.