The National Security Law Podcast

And…they’re back!  Fresh off of Thanksgiving, Professors Chesney and Vladeck are (all too) fired up to discuss the latest national security law news (not to mention a bunch of stuff that just isn’t relevant to this (or any decent) podcast).  This week some familiar storylines resume, and a few new ones appear: First up: The slowly-unfolding saga of the still-unidentified U.S. citizen held in military detention in Iraq. At long last, the district court will hold an actual hearing in ACLU v. Mattis, this Thursday, as a first step towards determining whether the ACLU even has standing to seek habeas review on John Doe’s behalf. Next: Off to the Supreme Court we go!  As an initial matter, the Court has denied cert. in Jaber v. United States, letting stand a D.C. Circuit opinion finding that the political question doctrine bars adjudication of a Torture Victims Protection Act claim by relatives of Yemeni victims of an alleged American airstrike.  Then we have a preview of Carpenter (which will be argued on Wednesday), which raises the possibility that the Court will take a bite out of the third-party doctrine at least for cell-site location databases–and, in doing so, set off waves of litigation seeking similar constraints on that doctrine in other digital contexts.  Your hosts note that a decision on these lines might well set the stage for litigation testing the notion of a foreign-intelligence exception to the warrant requirement, especially in connection with government access to telephone dialing records under the USA Freedom Act. And the Supreme Court tour then winds up with quick notes on the latest twists in the Travel Ban litigation. Next up: Back to GTMO, for an update and assessment of a slew of weedy, intertwined issues involving the authority of a military commission judge to compel civilian witnesses to testify, to have the last word on whether defense attorneys can withdrawal, to enforce its views with contempt sanctions, and so much more.  All that, plus the question of how the heck to get these issues resolved and the Nashiri case moving forward again. Last (substantively): A quick review of the CFPB leadership clash, seen through the lens of how similar questions might play out in a weightier context–i.e., if the current Attorney General should decide to make a career move. Last (ridiculously): I know what you are thinking:  You are dying to know what your hosts think are the all-time great submarine-themed movies, and the worst of that lot too.  Stay tuned if the phrase “Con! Sonar! Crazy Ivan!!!!” warms your heart!

In this week’s episode, your devoted hosts dig into a bonanza of national security law odds-and-ends. First up is an en banc decision by the Foreign Intelligence Surveillance Court of Review involving the standing of the ACLU and the Yale Media Freedom and Information Access Clinic to litigate a claimed First Amendment right of public access in relation to FISC opinions. This may not go anywhere in the end, but it’s definitely going to go further than the government wanted. Next comes the confusion surrounding a Justice Department letter indicating at least some willingness to dig into the Uranium One story and other related matters, which set the Twitterverse ablaze with concern recently.  A new special counsel?  Your hosts say: don’t bet on it. After that the show takes up the National Defense Authorization Act for Fiscal Year 2018, which should be signed into law soon.  It has the usual GTMO transfer provisions (albeit with something that might be an interesting wrinkle), along with a whole slew of cyber-related sections.  One of them expands the long-running Mac Thornberry project of crafting notification rules running to SASC and HASC instead of SSCI and HPSCI) for certain low-visibility military activities (this time: “sensitive military cyber operations).  There also are similar oversight-facilitating provisions relating to the military’s process for reviewing cyber “weapons” for international law compliance, and a refinement of the 10 USC 484 system for quarterly briefings on cyber operations.  All of which amounts to about .001% of the overall content of the NDAA…. The fourth topic involves a quick review of a recent Senate hearing on the authority of the president to launch America’s nukes, which in turn leads to a quick review of the criminal law–and pardon law–issues raised by the Shane Harris Wall Street Journal story on Mike Flynn allegedly negotiating a $15m payment for help getting Gulen out of Pennsylvania and back to Turkey, perhaps even via rendition.  Ah, 2017. The sensible part of the show wraps with a quick reminder that there still is a U.S. citizen in military detention in Iraq, and associated litigation pending (Doe v. Mattis). But hey, we all know the real fun comes with the trivia at the end.  This week’s topic?  Best movie sequels ever.  That, and also the worst.

Has it only been a week?  Yeesh.  Well, we are back!  In this episode, Professors Vladeck and Chesney focus on three topics: * The Mueller investigation and the prospect that Mike Flynn may be charged under the Foreign Agents Registration Act. * The increasingly-complex saga of the withdrawn defense lawyers in the al-Nashiri military commission case at GTMO.  Habeas petitions are sprouting all over the place, and the procedural complexity of the situation is growing by the day. * An interesting legal and policy question is lurking out there:  The use of the “hybrid model” (that is, military capture and initial interrogation, followed by long-term disposition via the civilian criminal justice system) in the Mustafa al-Imam case generated no complaints from the right, whereas the decision to use the civilian criminal justice system for Saipov certainly did.  This highlights the fact that we have a comparatively stable system blending military and criminal law enforcement tools for overseas captures, but no analogue domestically.  Yet there is a statute, from the USA Patriot Act in 2001 no less, that arguably could function as the domestic equivalent to the “slow boat” that undergirds the overseas-capture hybrid-model scenario.  Will it ever be used, and if so what might a constitutional challenge look like? With that out of the way, your intrepid hosts wrap up with a debate over the greatest comedy films of all time.   What’s your top three?  Let us know on Twitter: @nslpodcast And, hey, while you are online, go ahead and give us a review!

We are back, one day after dropping episode 43, with an emergency podcast discussion the legal consequences of the horrific attack that occurred in New York City yesterday.  The need for the podcast flows from the President Trump’s statements to the press today regarding the possibility of taking the perpetrator to Guantanamo,  his criticisms of the criminal justice process, and statements from Senator Graham emphasizing the need to interrogate the perpetrator without counsel.   Meanwhile, a military commission judge has held the JAG General who heads the defense operation there in contempt, confining him to quarters based on an episode in which the civilian defense team for al-Nashiri has withdrawn with his approval.  It’s a complicated situation all around, but Professors Chesney and Vladeck are here to walk through it all in this special episode. Of course, they couldn’t help but add on, at the end, their views of the just-released AP Top 25 for college basketball…

It’s been a busy week in national security law!  In Episode 43, Professors Chesney and Vladeck take on: * Mueller-Time: Indictments against Manafort and Gates, and an even-more important plea deal. * ACLU v. Mattis and the government’s filing in opposition to an order to show cause why ACLU should not get access to the US citizen held as an enemy combatant in Iraq. * A new Benghazi case: United States v. Mustafa al-Imam, captured by US forces in Libya (with Libyan government permission/involvement) and now en route (slowly, presumably) back to US for civilian criminal prosecution. * A quick note on the Senate Foreign Relations Committee’s hearing yesterday on AUMF issues (plus a related note on the federal statute — 18 USC 130f — that requires notification to the Senate and House Armed Services Committees when the military conducts (or supports a foreign partner on) a kill/capture mission outside a zone of active hostilities). * The blow-up in the al Nashiri military commission, with the commission judge threatening contempt if the would-be-former defense attorneys do not show for a hearing on whether their ethical objections genuinely require withdrawal All that, plus slick baseballs undermining sliders at the World Series!

This week Professors Chesney and Vladeck start with a close look at Smith v. Trump, a case that seeks a judicial ruling on whether the Islamic State really falls within the scope of the 2001 AUMF.  The case presents standing and political-question doctrine issues, and will be argued soon before the D.C. Circuit Court of Appeals.  This leads into an update on ACLU v. Mattis (the attempt by ACLU to represent the still-unidentified US citizen held as an enemy combatant), as the court has issued an order to show cause (due Monday) why the government should not allow access-to-counsel at this stage. This is followed by an update on the Travel Ban litigation (giving rise to the title of this episode), and after that the upcoming Bowe Bergdahl sentencing (and, more to the point, the combination of Presidential commentary on the case and a statement from the White House emphasizing the importance of avoiding unlawful command influence). At that point, your hosts come back to AUMF-type issues, in relation to the recent ambush in Niger and subsequent talk about whether the government has kept Congress adequately informed about the geographic scope of its operations. Finally, they wrap with an overview of an obscure part of the pending National Defense Authorization Act bill, one dealing with the third-country effects of computer network operations.  Well, that’s the last of the useful stuff.  Stick around to the bitter end, and you’ll get an earful of NBA predictions too… (sigh).

If you were unsure about whether your hosts are geeks, this episode will help settle the question.  But before we get to what Professors Chesney and Vladeck think they know but don’t really, here’s the stuff they actually do know something about! First, the Travel Ban.  Buckle up, there’s a new nationwide TRO, out of Hawaii, enjoining enforcement of most of Travel Ban 3.0. Second, a double-shot of the Nashiri military commissions case.  The Supreme Court denied cert., seemingly paving the way for that case to roll forward.  But not so fast–all the civilian defense attorneys, including their death-penalty expert, have just quit, citing ethical quandaries arising from alleged government surveillance of attorney-client communications. Third, and speaking of surveillance, the Supreme Court did grant cert. in the Microsoft-Ireland spat, which raises the question whether a “(d) order” under the Stored Communications Act can compel a company in the U.S. to produce data that is within the company’s control but stored on a server overseas. Fourth, and staying with the technology & statutes theme, there’s a fascinating “hack back” bill now pending in Congress, with the best acronym ever: the Active Cyber Defense Certainty Act, aka the ACDC Act.  For those about to legislate, we salute you.  And for those who want to know what this bill does, we…well, listen to the show for an introductory primer. Fifth, and briefly, an update on the status of ACLU v. Mattis, which is the habeas petition the ACLU filed on behalf of the still-unnamed U.S. citizen held as an enemy combatant in Iraq. If you stuck around this long, perhaps you do have an appetite for bad humor and unwitty pop culture observations.  In that case, you’ll perhaps enjoy an argument about the right ranking of the Star Wars films, where the only disagreement turns out to be which was the very best and which the very worst.  Or perhaps you fancy using Star Wars as a teaching foil in class?  Stick around for some Law of Interstellar Armed Conflict discussions, not to mention the role of Greedo in illustrating the principles of anticipatory self-defense.  Han shot first, and that’s all.

In this week’s episode, Professors Chesney and Vladeck zero in on four recent developments involving law and national security. First, they explore the Supreme Court’s decision not to review the splintered decision of the en banc D.C. Circuit in Bahlul (in which a plurality of the Circuit concluded that it was constitutional for Congress to give military commissions the capacity to adjudicate a conspiracy charge, notwithstanding the government’s concession that conspiracy standing alone was not a violation of the international laws of war).  They consider what this means for the commissions going forward, whether the rationale of the en banc ruling is binding or merely persuasive, and what if anything this portends for the still-pending Nashiri cert. petition. Second, they dig into the habeas corpus petition that the ACLU has filed on behalf of the still-unnamed U.S. citizen held by the U.S. military as an enemy combatant in Iraq. They grapple with the larger significance of the case, its likely future course, and–especially–the procedural and substantive questions raised by the ACLU’s attempt to act as John Doe’s “next friend” in filing the petition on his behalf. Third, they note the White House’s release of National Security Presidential Memorandum 7, which appears to call for the creation of an expanded interagency information-sharing architecture for distributing (and making possible more efficient analysis of) individual-specific data relating to various categories of national security threat.  Some such systems of course already exist, so it is difficult to say from the outside how much this will matter.  Still, the possibility that the initiative will lead to new entities having access to various types of intelligence is bound to raise privacy and related concerns of the same type as have been on display lately in connection with Section 702 data. Fourth, they close the serious part of the show with the decision of the Irish High Court in Data Protection Commissioner v. Facebook Ireland to refer to the Court of Justice of the European Union questions relating to whether there are adequate privacy safeguards when companies like Facebook transfer user data from there to the United States, bearing in mind the ability of the U.S. government to obtain access to that information in some contexts. Gluttons for punishment will listen on only to find themselves subjected, at no additional charge, to commentary on the MLB Playoffs, Steve Rushin’s fabulous memoir Sting-Ray Afternoons (a sweet and funny Gen X tale of growing up in the 1970s), and the Monday Night Football/Last Jedi halftime collaboration.

If you have ever wondered what statutes, constitutional principles, and judicial precedents come into play when the U.S. government contemplates transferring an American citizen from our military custody to the custody of another government, this is the episode for you. Building off news reports that the Trump administration is contemplating sending the as-yet-unnamed US citizen enemy combatant to Iraqi custody in order to face prosecution there, Professors Chesney and Vladeck spend much of this episode exploring the ins-and-outs of the legal issues that might arise in that case.  They focus in particular on the non refoulement issue, with special attention to the Supreme Court’s 2008 Munaf v. Geren ruling as well as a statute known as FARRA. They precede that discussion with news that the Supreme Court has agreed to hear Steve’s cases involving military officers appointed to civilian office (see here for more), and they follow it with an extended review of the extremely-interesting (and potentially quite-controversial) issues that might arise in the event of an acquittal in the currently-ongoing prosecution of Abu Khattala (the alleged mastermind of the Benghazi attack).  The latter discussion focuses on the likelihood that Khattala would immediately come into ICE’s custody pending removal, possibly with the aid of the not-yet-used Section 412 of the 2001 USA PATRIOT Act.  Such a result might well in turn result in a new form of indefinite, long-term, non-criminal detention, but then again the administration might also choose at some point to shift Khattala into military custody (perhaps within the United States, ala Jose Padilla, or perhaps even at GTMO). Towards the end of the show, Steve and Bobby tout the fascinating new podcast project from Prof. Eric Muller chronicling the human stories associated with the Japanese Internments and Removals of WWII, known as Scapegoat Cities.  Then they wrap up with a series of bone-headed predictions about the MLB playoffs, proving there are some serious gaps in their expertise…

Seriously, how did they manage not to say “posse comitatus” during this episode?  Sigh.  In this week’s episode, Professors Vladeck and Chesney do talk at length about various legal issues raised by the devastation in Puerto Rico, including the possibility of an Insurrection Act invocation.  In addition, they renew attention to the as-yet-unnamed U.S. citizen who apparently remains in U.S. military custody as an enemy combatant in Syria or Iraq, urging the media to keep a focus on this important situation.  On a related note, they also explore the significance of the Trump administration’s potential revisions to the Obama-era policy guidance regarding the use of lethal force outside of areas of “active hostilities.”  From there, they pivot to a review of the special birthday party the Senate Judiciary Committee through to celebrate Steve’s birthday yesterday, which took the form of a hearing on the constitutionality and desirability of a pair of bills that would help to further insulate the special counsel position (and, thus, Bob Mueller’s investigation) from removal without adequate cause.  And then they close with an update on the Travel Ban litigation, noting that the critical issue at this juncture is whether SCOTUS will vacate the relevant circuit decisions or let them stand.  Well, they “close” with that in the sense that this is where a reasonable listener would tune out…but, for those who are gluttons for punishment, you can listen through to the end and be treated to musings on the new Star Trek series, the rapidly-unfolding NCAA basketball scandal, and the relevance (or not) of the Cavaliers signing Dwayne Wade. Caveat audientis (or something like that…)!

In this week’s episode, Professors Chesney and Vladeck explore three big national security law developments from the past few days. First up: the news that the FISC, on two separate occasions, issued orders authorizing surveillance of Paul Manafort’s communications. Second: the news late last week that an as-yet-unnamed American citizen fighting for the Islamic State in Syria is now in US military custody and being held as an enemy combatant. And third: an update on the travel-ban litigation as it moves into the Supreme Court. All this, plus a random smattering of frivolous commentary on everything from the UT-USC game to the new Star Trek series.  (I know, I know, but they just insist on that stuff…don’t let it deter you from listening to the parts of the show when they actually know what they are talking about)!

We have a special treat in this off-cycle episode!  NSA GC Glenn Gerstell is in Austin to speak to our students here at UT, and (no doubt against his better judgment) he agreed to sit for an interview with Professors Chesney and Vladeck.  The conversation focuses in particular on the nature, operation, and criticisms of Section 702 collection authority.  As you probably know, Section 702 is scheduled to expire at the end of December, and there is certain to be a fascinating, high-stakes Congressional fight over its renewal in the months ahead.   Tune in for our discussion of targeting, minimization, “backdoor” searches, database queries, masking, unmasking, and many other key elements in the debate!

Will this year’s Supreme Court term be packed with cases relating to military courts?  In this week’s show, Professors Chesney and Vladeck explore the possibility.  The Supreme Court currently has before it an array of petitions for review involving military court questions.  The Bahlul litigation presents a complex but deeply-important set of questions relating to the ability of the military commission system to adjudicate conspiracy charges, intermixed with procedural questions about the standard of review should the Court choose to get involved.  The Nashiri litigation, for its part, ultimately presents the critical question of whether an armed conflict existed with al Qaeda pre-9/11, and the Supreme Court currently must determine whether that issue should be resolved pre-trial or if, instead, the process must unfold through trial first.  And then there a mix of cases, including a large group of servicemembers who were convicted by court martial, presenting the question whether active-duty officers can serve as judges of the Court of Military Commission Review without violating an 1870 statute that creates a baseline rule against officers serving in civilian government positions.  Whew!  But, hey, if you are not into such questions, perhaps you’ll stick around to find out which band Bobby saw last Friday night, and which football team greatly disappointed Steve on Sunday night!

In today’s episode, Professors Chesney and Vladeck spend time with three legal topics (before spiraling off into some ill-informed commentary on the college football season).  First, building off a report that FBI arrests of Islamic State supporters inside the US have declined significantly recently, they discuss why such a change may have occurred and what it signifies for the role of law enforcement in counterterrorism policy. Second, they check in on the progress (ahem) of the pre-trial proceedings in the military commission case involving the 9/11 conspiracy.  The trial judge recently offered January 2019 as a trial date trial balloon, which leads your hosts into an extended discussion of the odds of that happening–and the many complications that factor into that question.  Third, on the theory that decisions to enforce or not enforce various aspects of immigration law pertain to the larger topic of presidential power, they dive deep into the DACA controversy.  If you are looking for a walk-through of the basic legal issues, and some speculation about how things may play out, this is what you need.  Oh, and as I mentioned, they seem to think they have some neat insights into college football, so if you like that sort of thing–or if you just want to hear them wallow in the pain of UT getting smacked by Maryland in its home opener–stick around for the final ten minutes.

In this week’s episode, Professors Chesney and Vladeck take advantage of a relatively quiet week for national security law developments in order to range across a number of topics. Being in Texas, we are all quite focused on the terrible tragedy unfolding thanks to Hurricane Harvey, and so your hosts open with a survey of various legal issues that could have arisen in the context of this emergency (though, fortunately, none seem to have).  Then, noting that today was the first day of class at Texas Law, they discuss whether their respective Constitutional Law courses will or should be different this year in light of controversies associated with President Trump.  They also take note of the latest North Korean missile launch and use that as a basis for discussion the line between self-defense and offense–in relation to Japanese law. And they also comment on the surprise settlement in the case brought against the private sector psychologists who designed the CIA’s Enhanced Interrogation Technique program.  Finally, and inevitably, they review the season finale of Game of Thrones (including a digression into such important questions as: do the wights possess human rights?).