The National Security Law Podcast

It’s not every week on this show that we get to talk about the Trade Expansion Act of 1962 and the General Agreement on Tariffs and Trade!  And if that’s not an appealing hook to get you to listen, we don’t know what is.  Ahem…. Let’s try that again.  On this week’s show, Professors Vladeck and Chesney cover a mix of new and old topics: * President Trump’s invocation of national security to justify new tariffs on steel imports: is it plausible from a legal perspective? * The war(s) in Yemen, a proposed joint resolution to limit America’s military roles there, and a statement from DOD’s GC providing a snapshot of views regarding the legal issues raised by those roles (including a gesture towards a Commander-in-Chief override argument should such a resolution somehow become law). * Checking in with our crisis-ridden military commission system: Nashiri’s last remaining attorney argues that the CMCR lacks jurisdiction to hear an interlocutory appeal from Judge Spath’s abatement decision. * FISA, the FISCOR, and SCOTUS (we love acronyms!): join us for some fed courts nerdistry on the surprisingly-limited pathways for a FISCOR ruling to make it to SCOTUS (prompted by the pending ACLU/MFIA litigation seeking increased transparency for FISC opinions). * Did HSPCI staff leak a Senator’s text messages?  We check in on the growing tensions between SSCI and HPSCI. * Last (well, last for serious stuff), we take the occasion of the recent Hope Hicks testimony to remind listeners how executive privilege invocations in Congress are supposed to work. Actually last, frivolity is back, albeit briefly (what an odd sentence).  Your mission, should you choose to accept it: What are the greatest TV dramas of all time?  Mini-series excluded, but doesn’t have to be broadcast network TV.  Listen to the end to see if you agree with our take!  And, finally: please spread the word about the podcast!

No shortage of topics this week, but then again there was no shortage last week, or before that, or…ever.  So, what’s on tap?  Tune in to hear Professors Chesney and Vladeck explore: * A host of Supreme Court developments, including action relating to DACA, immigration detention and the due process clause, Patchak and the question whether Congress can direct courts to dismiss a class of cases, and-especially-the United States v. Microsoft litigation and the question whether Microsoft can refuse to comply with a warrant where the data in question is held on a server outside the United States.  That last topic in turn leads to an overview of pending legislation–the CLOUD Act–that might resolve the issue in an appealing way. * A host of Military Commission developments, including (in)action on the Darbi plea-based transfer, clarification on the appealability of Judge Spath’s remarkable abatement ruling, and a bold move by Judge Pohl to compel Secretary Mattis to justify the firing of Convening Authority Harvey Rishikof and his legal advisor Gary Brown (in the context of an unlawful command influence motion). * Suing terrorists–and their banks:  a discussion of JASTA, the Anti-Terrorism Act, and the recent Second Circuit ruling in Linde v. Arab Bank. * The Schiff Memo, the #Mehmo, and more…when will it all end? * A new case for the Foreign Intelligence Surveillance Court of Review–an appeal by the government from a split en banc FISC ruling finding standing for the ACLU and MFIA to press a First Amendment claim to seek access to FISC rulings. * And last, but not least, we review some recent letters from State and Defense, sent to Senator Kaine, reviewing Trump administration views on the legal bases for the US military role in Iraq and Syria. Alas, little frivolity this week.  But don’t bet on that to continue!

An over-long episode with a short title to reflect a very busy–and somewhat bizarre–eight day stretch in the wide world of national security law.  This week, your hosts Professors Chesney and Vladeck weigh in on: * The Supreme Court’s decision in Rubin v. Islamic Republic of Iran * The Supreme Court’s denial of cert. in CareFirst * The Supreme Court’s telling inaction on the government’s request for cert.-before-judgment in the DACA litigation * The Defense Department’s failure to transfer al Darbi from GTMO to Saudi Arabia in accordance with his plea agreement (oh how you’ll enjoy the part when Steve reads extended passages from the 2016 NDAA and Bobby narrates the 2014 plea agreement!) * Judge Spath’s mil com mic drop (“I’m out!”), as well as the military commission prosecutor’s office attempt to secure interlocutory review (spoiler alert: probably should be a petition for supervisory mandamus) * A short review of the past few weeks of DOJ counterterrorism prosecution results * The government’s factual case against US/Saudi dual-citizen John Doe, currently in military detention in Iraq, and the question of how to calibrate the burden of proof when it is a citizen * Mueller’s Russia indictment and what it does (or does not) signify. All that, plus disparaging remarks about Olympic competitors who do not appear to be skilled, at all, in “their” sport.

We don’t lack for topics this week!  In today’s episode, Professors Vladeck and Chesney eat a number of cookies while talking about the following: * Rachel Brand steps down at DOJ.  As George III might say, what comes next?  Your hosts review the order of succession. * A triple update on military commission matters: Was the firing of Convening Authority Harvey Rishikoff linked to a possible plea negotiation with the 9/11 defendants?  What’s the deal with the Nashiri trial judge suggesting that the lone remaining defense attorney attend a death penalty training course?  And what are the odds that the government goes ahead and transfers Darbi to Saudi Arabia next week? * Next up: Two (formerly) British men who became especially-notorious ISIS members are now in the custody of Syrian Kurds, and the question of how to deal with them for the long term has arisen.  Should they go to GTMO?  Back to the UK?  Face military commission charges?  Or capital charges in a regular Article III court? * Doe v. Mattis, the AmCit detainee case, now has two tracks.  On one, the D.C. Circuit in early April will have oral argument on the transfer issue.  On the other, the issues have now been joined on the merits back at the district court.  Spoiler alert: it’s mostly about the 2001 AUMF and the Non-Detention Act. * The #Mehmo and the Schiff Reply: Perhaps social media overreacted a bit to the Trump administration’s refusal to declassify in full the current version of the Schiff Memo.  We predict a negotiated outcome resulting in the release of a modified version soon. * Speaking of the Russians…Kaspersky Lab is suing up a storm!  Last December they sued DHS alleging a violation of due process when DHS banned federal entities from using Kaspersky products, and now they are suing the United States government as a whole alleging that a similar rule contained in the recent National Defense Authorization Act amounts to a…wait for it…Bill of Attainder.  We review both suits, and tell you which one has stronger prospects (relatively speaking). Thanks for listening!

Sorry that football season is over?  Lucky for you, the National Security Law Podcast has no offseason!  And lucky for your co-hosts, the world keeps generating new topics for conversation and debate.  This week, Professors Vladeck and Chesney cover four main topics: * The president’s “treason” remarks yesterday in Cincinnati * The next stages in the Nunes #Mehmo controversy: * What precisely must happen under the House rules in order for the Schiff Memo to see the light of day, and what rules and laws might come into play if the White House opposes release? * Will the FISC be persuaded to publish a redacted version of the original (and successive) FISA order applications involving Carter Page?  Can those documents be obtained via FOIA? * Military Commissions and the firing of Harvey Rishikof and Gary Brown: * What might this signify, and why might it have happened? * What does it portend for the huge February 20th deadline for transferring al-Darbi out of GTMO pursuant to his plea agreement? * Doe v. Mattis status report: * When is the government’s return due, and what should we expect it to say? * The government is appealing Judge Chutkan’s order requiring 72-hours notice prior to transfer: what are the prospects for that appeal, and where does the Kiyemba II ruling fit into the mix? Of course, it wouldn’t be the NSL Podcast without ill-informed digressions.  The Super Bowl provides fodder for plenty of that.  Listen to the bitter end, if you must, and you’ll hear commentary on Justin Timberlake, the Han Solo prequel, Dirty Dancing, and the game that they played between the commercials.

President Trump has declassified the Nunes Memo and it now is available to the public.  Your hosts–Professors Bobby Chesney and Steve Vladeck–give it a deep-dive review here in a special-edition podcast episode.  Tune in to hear them discuss: * whether there are any factual claims in the memo which (*if* true) are worthy of concern (preview: they single out two); * whether any such concerns extend so far as to call into doubt whether FISC should have granted an order to surveil Carter Page (preview: no); * whether any such doubt extends to the larger FBI counterintelligence investigation involving Russia (preview: the #mehmo itself underscores that this investigation was well underway already); and * whether FBI Director Wray should now resign (preview: your hosts disagree. Be sure to listen through to the very end, by the way; if you are a regular listener, you might be surprised by who gets most fired-up at the conclusion. Meanwhile: please spread the word about this episode, and the show more generally!

You might not want to watch the State of the Union tonight, but don’t miss this episode of the podcast! This week we cover: * The missing Russia sanctions?  A statute enacted last summer appears at first blush to require the Trump administration to sanction people doing significant business with Russian military and intelligence entities, starting this week.  It didn’t happen, and some are alarmed.  What did this statute actually require?  We’ll explore the situation, walking you through the statutory carve-outs. * The #releasethememo story evolves: alas, this bizarre topic from last week has not gone away, and with HPSCI now voting to release it seems we are headed still further into the woods.  We review the context, explain how this relates to a mounting effort to delegitimize Deputy Attorney General Rosenstein, and why #releasethememo should also entail #releasethedissent. * Would it be constitutional to empower courts to oversee decisions to remove the Special Counsel? Revelations that White House Counsel Don McGahn threatened to resign rather than convey President Trump’s directive to fire Special Counsel Mueller last summer have drawn renewed attention to two pending bills that would subject such decisions–which according to DOJ regulations must be made based only on a showing of good cause–to judicial review.  Would such a law be constitutional? Asking for a friend… * About that GTMO closure executive order: Several times over the past year, reports circulated that the White House was prepared to issue a GTMO executive order repealing the 2009 Obama order directing GTMO’s closure.  It may finally happen this afternoon, in the run up to tonight’s SOTU.  Tune in for our predictions as to what it might entail. * The location of the hidden rebel base: Anyone who watched the Last Jedi should know that sometimes it is possible to track the movement of the military in unexpected ways.  Still, who would have guessed your jogging app would be the cause?  We note the way Stravagate might inflect perceptions about larger issues involving metadata and third-party data (where is that Carpenter decision, anyway?). That’s more than enough, but if you want to hear thinly-reasoned takes on the Grammy’s, by all means listen until the end!  You go, Gary Clark Jr.!

Happy anniversary, y’all!  It’s been one full year since we launched this podcast, and we are very grateful for all our listeners.  Here’s hoping there is *less* to discuss in our second year! This week, we’ve got: * The FISA Amendments Reform Act: How exactly does the new warrant requirement work, what it do with “about” collection, and how did it approach the question of “parallel construction”? * #ReleaseTheMemo:  What the heck is this all about? * Must the government have a statutory or treaty basis to transfer John Doe (a Saudi-US dual-citizen held for many months now in US military custody in Iraq, and the petitioner in Doe v. Mattis) to the custody of a third country? * Travel Ban 3.0: on its way to SCOTUS in what is shaping up to be a blockbuster term. * The REAL ID Act and the expiration of a key deadline for travelers from certain states and territories. * The Anti-Deficiency Act and what it means for the pay of military personnel when the government is shutdown. * A temporary grant of authority to the executive branch to reprogram intelligence appropriations? As for the usual frivolity: Your hosts were committed to getting the show under one hour this week…and, anyway, they couldn’t think of anything fun for their final segment.  Unfortunately, this seems to have encouraged them to digress at unpredictable times during the core program to an even greater extent than normal.  Bear with them, it’ll be worth it!

And we’re back, with another weekly dose of national security legal news and analysis.  Fresh off the stove this week we have: * Dalmazzi – Steve is just returned from his first Supreme Court argument, in the Dalmazzi litigation regarding whether military officers may serve both as CAAF and CMCR judges.  Tune in to discover why the room erupted in laughter right before Steve began his argument, and to learn why Justice Kennedy wanted to know if Steve thinks Marbury was decided correctly! * al-Bihani et al. v. Trump – The first grand wave of GTMO habeas litigation largely wrapped up some time ago, but the filing of this renewed petition by a group of 11 detainees reminds us that more litigation is always possible.  In this case, there are arguments to the effect that the armed conflict with al Qaeda has ended, and that President Trump in any event has abandoned reliance on the idea of detention solely for the duration of hostilities in favor of permanent detention. * The FISA Amendments Reform Act – The Section 702 renewal drama is nearing its end.  Last week President Trump quietly directed DNI Coats to introduce IC-wide rules on “unmasking,” and he duly complied on Thursday (including rules specific to unmasking of USP identities involving members of presidential transition teams, naturally). Who knows whether that helped pave the way for the Section 702 renewal bill, but it certainly didn’t hurt.  At any rate, the FISA Amendments Act has now overcome a Senate filibuster, and should pass later this week and become law at some point thereafter.  We wrap this week’s episode, therefore, with an initial close-read of Section 101 of the Act, which imposes a warrant requirement on FBI access to the fruits of 702 collection involving queries using US person identifiers. Suffice to say: it’s complicated. For better or worse, Bobby and Steve continue to insist on ending the show on a lighter note.  This week’s frivolity? Best. Sitcoms. Ever.

In this week’s episode, Professors Chesney and Vladeck take on three sets of issues under the national security law heading: * ACLU v. Mattis (the US citizen enemy combatant case): Since the last episode, the government has permitted the ACLU to communicate with John Doe, who does indeed want ACLU to pursue habeas relief on his behalf.  This quickly led to an exchange of filings disputing whether the currently-pending petition is valid, when the government should have to file its return in response, and whether the judge should renew the ban on transferring Doe in the interim.  Your hosts go over all the fine details, and then move on to a rather-extended debate on how the legal merits will play out should the petition get that far (covering issues including the applicability of the AUMF to the Islamic State, and the relevance of Hamdi v. Rumsfeld vis-a-vis the Non-Detention Act as applied to this situation). * Dalmazzi v. United States: Very soon, co-host Steve Vladeck will be making his first appearance arguing before the Supreme Court of the United States, in Dalmazzi.  Your hosts will explore the larger significance of the case, and then talk through a late-developing aspect of the case: whether it presents a classic Marbury v. Madison problem? * FISA: As happens every week of late, the substantive portion of the show wraps with a review of what’s happening in relation to surveillance law, as we continue to await the results of Congressional sausage-making in relation to renewal of Section 702.  This week, the check-in includes not only notes on where 702 renewal stands, but also news about the Supreme Court denying certiorari in a Ninth Circuit case involving the use of 702 fruits in a criminal trial, and a decision by the FISC to certify to the FISA Court of Review an en banc FISC decision recognizing ACLU’s standing to seek disclosure of certain FISC opinions.  Whew! Of course, the good professors can’t leave well enough alone, so for those who are gluttons for punishment you’ll be treated at the end to discordant thoughts on: the riff-off in Pitch Perfect 3, the Golden Globes (both the awards, and the #MeToo overhang), and the likely outcomes in this weekend’s NFL playoff games.   If there’s ever a Golden Globe for podcast episodes, don’t hold out hope for this one!

Merry New Year! 2018 is underway, but in today’s episode we are looking back at 2017.  More specifically, we are looking back to predictions made in early 2017 regarding the changes President Trump surely would be making to certain executive orders and presidential directives relating to national security.  How did those predictions turn out?  It’s rather complicated. Tune in to find out what has and has not happened, and why, as we consider the fate of five key documents: * EO 13491 (interrogation and the US Army Field Manual) * EO 13492 (GTMO closure) * EO 13567 (GTMO Periodic Review Boards) * PPD 28 (foreign persons and US SIGINT activity) * The “PPG” (constraints on the use of force outside areas of active hostilities) Next, the discussion turns to larger questions about the general direction of national security law commentary in 2017.  Everyone agrees that the Trump Administration has generated a host of novel issues, and that these issues are garnering a great deal of attention from those of us engage publicly on national security legal issues.  But not everyone agrees that the latter is a good thing.  Some argue that it distracts too much from core issues associated with the use of force and other aspects of counterterrorism and military affairs, while others argue that it reflects an unjustified obsession with and hostility towards Donald Trump.  We wrestle with those critiques. Last (and no doubt least), we have at last both managed to see Star Wars: The Last Jedi, and we wrap with a looooong review (one that is so preposterous that not even Rose and Flynn would go along with it…and that is saying something!).

Well, 2017 is almost done.  No doubt there are a few more kicks-in-the-pants on the way before it’s all said and done, but hey, we can at least offer you one final episode of this podcast!  So, you’ve got that going for you, which is nice… Four topics today: * ACLU v. Mattis – Judge Chutkan has ruled.  It’s brief, it’s favorable to ACLU, and it’s got a good shot at … being reversed on an interlocutory appeal, at least in part. * Section 702 renewal – well, here’s another storyline that will certainly last into 2018.  Congress officially kicked the can down the road, extending 702 unchanged until January 19th.  Looks like we’ll have something to chat about next month, for sure. * The first wave of sanctions under the Global Magnitsky Human Rights Accountability Act have arrived, giving us the perhaps-unexpected scene of President Trump issuing an executive order declaring human rights violations and corruption abroad to be national emergencies. * Predictions for 2018?  Sure, why not!  Here’s a preview:  We will be back with 50+ episodes in 2018, every one of them featuring something about…surveillance, or detention, or war powers, or movies. Naturally, we end this week–and 2017–with our patented frivolity segment.  Our theme?  Movies that have significant national security law elements in them.  We only mention a couple, so be sure to send us tips on the ones we missed!

Are your other podcasts letting you down by taking a holiday break?  Never fear, National Security Law Podcast is here! With two host who would much rather be podcasting than grading exams, you are assured of an uninterrupted holiday stream of national security legal analysis, not to mention ill-informed takes on…movie soundtracks? Seems your hosts may have been in the eggnog a bit early this year.  But nevermind that, let’s get to the overview of what Episode 50 has to offer: * A postmortem on the mixed verdict in the Abu Khattala (Benghazi) trial in late November: The jury acquitted on the most serious charges, but did convict on others.  What will this mean, if anything, for the long-running debate regarding disposition options for terrorism suspects?  And why did the trial turn out that way? * The Presidential Transition Team emails produced to the Special Counsel by GSA: Beneath the political aspects, what are the constitutional, statutory, or other legal considerations that should inform this story? * Still waiting… We’ve been waiting all year to find out what Congress will do with respect to Section 702 renewal, and it seems we will have to wait just a bit longer, for as of this morning there still was no action.  Meanwhile, the same is true about the pending motion for jurisdictional discovery in ACLU v. Mattis.  Chances are good both of those will see significant developments in the days ahead, so stay tuned for Episode 51 (which we are likely to record on Wednesday next week). Of course, it wouldn’t be the National Security Law Podcast without a discussion of frivolous matters at the end.  This week’s topic: all-time great movie soundtracks.  We heard through the grapevine that this would be a contentious discussion… Happy holidays to all!

In this week’s episode, Professors Steve Vladeck and Bobby Chesney pick up the thread on a handful of familiar issues, and introduce a few new ones as well. * Interrogation:  Their first topic is a blend, actually: the case of Akayed Ullah, who attempted to set off a pipe bomb in New York City yesterday.  Ullah was taken into law enforcement custody, but soon some quarters were calling for him to be placed in military custody for interrogation purposes. Your hosts will revisit the tangle of issues involving Miranda, presentment, habeas, and more that such arguments raise. * Habeas and military detention: Next up is a recap of Monday’s hearing in ACLU v. Mattis, in which the government continues to resist efforts to determine whether a US citizen held as an enemy combatant in Iraq wishes to pursue habeas review, and whether that review can begin now or must await some further development. * The 2001 and 2002 AUMFs: DOD’s acting General Counsel recently gave a speech outlining the administration’s views on the 2001 and 2002 AUMFs, and the possibility of repeal-and-replace.  Your hosts will flag the highlights. * Somalia: Staying with the AUMF theme, the next topic will explore the legal implications of a New York Times story on plans for expanded operations in Somalia. * Military Commissions: Last but not least, there are some new charges pending in the military commission system, raising some interesting scope-of-conflict questions. Of course, that’s not really the last topic of the day.  The real last topic? As always on this show, your hosts close with frivolity.  This week it is: terrible movies that we nonetheless love.  Be sure to hit us up on @nslpodcast to share your own favorites!

In this week’s episode, Professors Chesney and Vladeck catch up with a number of 2017’s most-persistent national security law sagas. For starters, there’s the indictment and plea agreement of Michael Flynn.  What does the charge signify, and what does this imply for the larger Mueller investigation? This leads directly to a discussion of whether it is possible, as a legal matter, for the President to “obstruct justice” (and how that phrase has both legal and political significance). From there, your hosts pivot to the slowly-unfolding drama of ACLU v. Mattis, where the district court has now begun to engage directly.  The parties for the moment are fighting over the extent (if any) of the court’s authority to order jurisdictional discovery. Next up is the recent action in the Supreme Court of the United States,  where (i) Travel Ban 3.0 just got some very good news, (ii) the Third Party Doctrine looks likely to be shrunk to some degree in Carpenter, and (iii) owners of Persian sarcophagi are watching the Rubin case unfold with bated breath. Last but by no means least: we’ve entered the final countdown for Section 702 renewal, and rumors are afoot to the effect that the SSCI bill or the HPSCI bill may simply be tacked on to a must-pass legislative vehicle (such as a bill to avert a government shutdown).  Your hosts will take a quick look at what the Senate bill does and does not do, with that prospect in mind. Of course, then you have the trivialities segment.  This time its an assessment of the College Football Playoff structure, followed–naturally enough–by a review of…Love Actually.