The National Security Law Podcast

Never a dull moment in 2017.  In this week’s episode, Professors Vladeck and Chesney take on four topics (well, four relevant topics…do try to stay with them past their musings on home runs at the Little League World Series).  First, they unpack the part of President Trump’s Afghanistan speech in which he promised to loosen “rules of engagement,” construing it as a pledge to further relax Obama administration policies regarding the scope of permitted targets in Afghanistan, the permissible roles for U.S. ground forces, and the range of situations in which permission must be obtained from POTUS or SecDef.  They place those possible changes in context with similar adjustments in 2014 and 2016, and discuss their implications for the AUMF debate as well.  Second, they note a report (by Charlie Savage and Adam Goldman) in the New York Times to the effect that President Trump is drawing close to signing a new executive order on the fate of Guantanamo (and, indeed, that he nearly signed it three weeks ago).  This leads to a discussion of what we should all be looking for in whatever GTMO order emerges (for example, will there still be Periodic Review Boards?). Stay tuned on that subject.  Third, they discuss the D.C. Circuit’s recent ruling requiring Judge Scott Silliman to recuse from the Court of Military Commission Review in relation to the 9/11-focused military commission case (a discussion that leads to a more-general conversation about whether it makes sense even to have the CMCR going forward). And fourth, they discuss the uber-fed-courtsy (yes, that is a phrase now!) question of whether the Judicial Power under Article III extends to injunctions directed to the President himself.  The key case there is Mississipi v. Andrew Johnson, and the principle is of self-evident importance–but not self-evident current vitality. But wait…don’t stop at that point!  Surely you have not had enough Game of Thrones talk yet?  Whew, good.  Stick around for their review of the Zombie Rendition episode (aka GoT episode 6), in which they complain about temporal implausibilities, stupid strategies, and tactical blunders in the world of Westeros.

In this week’s episode, Professors Chesney and Vladeck make a whole series of blatantly un-Mirandized statements about some of the latest national security law developments.  First, they take up a number of questions relating to the events in Charlottesville.  Was the murder an act of “domestic terrorism”? What does federal criminal law have to say about domestic terrorism?  How does this situation compare to Monday’s news of a man in Oklahoma City who sought to set off a bomb ala Timothy McVeigh?  And what issues arise when heavily-armed self-styled militias take to the streets in these settings?  Second, they give a quick review of the controversial search warrant issued by a judge in Washington, DC, to the web hosting service Dreamhost (seeking information about visitors to a website that helped organize protests that turned violent during the Trump inauguration).  And third, they explore a brand-new opinion from the district court in United States v. Abu Khatallah. That case arises out of the Benghazi attack, in which the defendant was captured in Libya and then transported to the U.S. (to face criminal charges) on a U.S. Navy vessel. Along the way, the defendant initially was interrogated without Miranda warnings, and then an FBI clean team eventually took over.  In today’s opinion, the district court rejected the defendant’s motion to suppress the “clean team” statements, rejecting the defendant’s arguments involving delayed presentment, voluntariness, and compliance with Miranda.  Your hosts seem to agree: a win for the government on the surface, yes, but signs of trouble for future cases are there too.  This is followed by some quick responses to listener questions, and then, because they can’t leave well-enough alone, they conclude with the inevitable segment on Game of Thrones.

In this bizarrely-titled episode (ok, they pretty much all have bizarre titles, Professors Vladeck and Chesney take on four national security law developments from the past week. First, they explore the district court ruling in Salim v. Mitchell, in which the court rejects cross-motions for summary judgment in an Alien Tort Statute suit brought by former CIA detainees against the two psychologists who designed and helped implement the “enhanced interrogation techniques” program.  Second, they unpack the meaning and significance of last week’s press observation held by Attorney General Sessions, in which he warned that DOJ and FBI will be ramping up their anti-leak efforts (of course the real lesson for reporters from this whole episode is: probably better not to call these professors, lest they talk your ear off about Game of Thrones).   Third, they offer some preliminary thoughts on the legal issues that will arise if the US does begin using airstrikes against Islamic State targets in the Philippines, as recent media reports have suggested might occur.  Fourth, they drag us all down into the weeds of treaty law–especially the “non-self-execution doctrine”–in connection with the Ninth Circuit’s opinion rejecting an attempt by the Marshall Islands to get a court to declare the US government in violation of its obligation (under the Nuclear Non-Proliferation Treaty) to negotiate in good faith towards nuclear disarmament.  One might hope they’d be exhausted at that point, and end it there.  But no, they trudge on, sharing their “insights” about the latest episode of Game of Thrones at remarkable length. Happily, GoT’s current season only has a few shows left, so soon your hosts will have to move on to something else!

This week’s episode certainly has a military theme.  Professors Chesney and Vladeck start off with a surprisingly (or is it disturbingly?) lengthy discussion of the writ of mandamus litigation currently pending in the D.C. Circuit Court of Appeals in connection with military commission proceedings.  It’s like sitting in a Fed Courts class, except with worse jokes (doesn’t matter who your professor is, she or he surely was funnier than this). Then again, the topic turns out to be rather important for the larger questions surrounding the ability of the military commission system to move forward, so maybe it’s worth it.  Maybe.  Stick around, though, and you’ll be treated (again, probably not the right word) to an overview of the IHL/LOAC issues that were on the table at the recent Transatlantic Dialogue on International Law and Armed Conflict, which will give you a bit of perspective on the sort of questions that law of war experts think are especially interesting these days.  That’s followed by a civil-military relations discussion, one that pays particular attention to the origins and evolution of the statute that forbids serving military officers from holding certain civilian government positions (a cheap ploy to bring the recent Trump administration personnel moves within the scope of the podcast? maybe so, my friend, maybe so). Last, and least, the good professors wrap with a spoiler-packed review of Game of Thrones Episode 3, which aired a few days ago. One of these guys thinks that Tyrion’s reputation for strategic acumen is super-overrated…

In this week’s episode, Professors Chesney and Vladeck focus on two subjects: the extradition of Ali Damache and what it might portend for Trump administration counterterrorism policy, and the slate of issues surrounding the potential removal of Attorney General Sessions. The Damache case is interesting on its own terms in light of the underlying crime (a plot to kill the Swedish artist Lars Vilk, including the recruitment of three Americans to the conspiracy), and also because Ireland previously refused extradition of Damache on the ground that he would likely end up in the SuperMax in Colorado and there experience inhuman and degrading treatment (in the form of prolonged solitary confinement).  Spain had no such qualms, and now Damache faces charges in Philadelphia. Meanwhile, speculation is mounting that President Trump is eager for Attorney General Jeff Sessions to resign, and that Sessions might be fired if he won’t go of his own accord.  Your hosts walk through the three major pathways to removal, each of which has its own set of legal and political complications.  Finally…it may be summer in Austin, but it’s winter in Westeros. Inevitably, this leads Steve and Bobby to close out the episode with their oh-so-expert comments on the first two episodes of Game of Thrones Season 7.

Want a thorough backgrounder on the 2001 Authorization for Use of Military Force?  This is the episode for you. (This also is the episode for you if what you want, instead, is an hour of legal blather followed by five minutes of speculation about Season 7 of Game of Thrones). The “AUMF” is the key statute on which the government relies for its post-9/11 uses of force relating to terrorism, and it has been the source of controversy and debate for the better part of the past sixteen years.  This week’s episode focuses exclusively on it. Professors Vladeck and Chesney first explain how it fits into larger legal debates about the separation of powers in our system.  Next, they review some of the key historical developments leading to its passage.  Then they describe the fight in September 2001 over how broad it ought to be. Then they talk about key legal rulings construing its scope in the years that followed.  Then they talk about how the evolving circumstances of counterterrorism–particularly the emergence of entities like AQAP and the Islamic State–have heightened questions regarding the continuing relevance of the AUMF.  Then they describe some of the proposed legislative fixes (and why they have not moved forward).  Then they…oh, I give up, you have the general idea, it’s quicker just to listen!

In today’s episode, Professors Chesney and Vladeck focus on three sets of issues.  First, they explore the D.C. Circuit’s June 30th ruling in Jaber v. United States, in which the court on political question grounds affirmed dismissal of a suit seeking damages in relation to a 2012 drone strike in Yemen. If you are into the political question doctrine, well, that’s kind of scary but the important thing is that you’ll enjoy the discussion.  If you don’t enjoy getting into the legal weeds of justiciability, that probably reflects well on you but you will hate this part of the episode.  Moving on…  Next, your hosts debate the criminal law implications of recent revelations about a meeting between a Russian lawyer and Donald Trump, Jr. (as well as Paul Manafort and Jared Kushner), involving an expected offer by the Russian to give derogatory information about the Clinton campaign.  Did it violate campaign finance laws? Is the real legal story here about failing to disclose the conversation? Finally, Vladeck and Chesney dig  into a trio of developments relating to military commissions at GTMO.  What did the Court of Military Commission Review recently say about the statute of limitations for war crimes, and why is that a hard question?  Why is Canada giving millions to Omar Khadr, and what is the controversy surrounding the military commission charge known as “murder in violation of the law of war”?  And what is up with a military commission judge calling a halt to proceedings because of…a boat?  Oh, and be sure to stay tuned to the end, when your hosts hand out their midseason MLB awards.  Just think, starting next week you are going to have to put up with them dissecting Game of Thrones episodes…ugh….

Had you seen the word “limitrophe” before Justice Breyer used it in his dissent in Herndandez v. Mesa? Neither had Professors Vladeck and Chesney, but that doesn’t stop them from exploring the Supreme Court’s action in that cross-border shooting case, with its implications for Bivens, qualified immunity, and the extraterritorial application of the Fourth Amendment.  Nor does Travel Ban fatigue stop them from unpacking all the details in Trump v. IRAP, the Supreme Court’s per curiam ruling partially lifting the nationwide preliminary injunctions involving President Trump’s travel-ban order.  Completing the SCOTUS trifecta, your hosts also flag the cert. grant in a case involving Persian antiquities given to Indiana Jones in the 1930s…well, sort of, you have to listen to find out what that’s all about.  In the back half of the episode, discussion turns to the sudden appearance of military commission charges against Hambali, the GTMO implications of a recent story about SOF manhunting operations attempting to capture Islamic State leaders in Syria, and the legal implications of accepting intelligence from and otherwise becoming enmeshed in detention centers run by the UAE in Yemen (in light of a story alleging torture at those centers).  Oh, and then there’s an assessment of the legal implications of Paul Manafort making a post-hoc registration as a foreign agent.  All that, plus Steve rubs Bobby’s nose in the fact that Chris Paul apparently is going to become a Rocket and not a Spur….

In today’s episode, Professors Chesney and Vladeck discuss the Supreme Court’s decision in Ziglar v. Abbasi in more detail than you could possibly want.  What’s that one even about, you ask?Damages for alleged violations of the Constitution arising out of the massive post-9/11 immigration sweep.  Let’s just say it was not a good result for the plaintiffs, nor for fans of Bivens doctrine (poor Steve!).  Next comes both an international law and domestic law analysis of the episode on Sunday when a US aircraft shot down a Syrian Air Force jet.  How does the unwilling/unable doctrine match up with the right of a sovereign government to use force against a non-state actor rebelling against it, where that non-state actor is also engaged in coalition operations against the Islamic State?  And does either the 2001 AUMF or Article II carry with it authority to defend coalition partners? Finally, there is an update on the Travel Ban litigation, followed by a spoiler-laden, rambling dissection of what lies ahead in Game of Thrones Season 7.  Because, why not?

In this episode, Professors Vladeck and Chesney come up with a tongue-twister of a title while exploring the legal fallout from the Comey testimony last week, including discussions of (1) whether Comey’s actions were illegal (hint: they weren’t), (2) whether executive privilege attached to his conversations with Donald Trump (hint: not really), and (3) what would it look like if the president decides to try to fire Bob Mueller–or even abolish the office of the special counsel.  Your hosts also find time to talk about the recent arrest of two Hezbollah operatives inside the United States (with commentary on the role the material support statute plays in such cases), a recent airstrike in Somalia that DOD says took place under color of the recent policy decision to categorize Somalia as an area of active combat operations, a new bill from the House Armed Services Committee that would require DOD to give notice to HASC and SASC when conducting certain offensive (or active defense) cyber operations, and–of course–the latest twists and turns in the ever-more-complex Travel Ban litigation.  Tune in, give us a review on iTunes and elsewhere, and spread the word to others!

In this episode, Professors Chesney and Vladeck have a full plate.  The arrest of a contractor named Reality Winner (for having stolen classified information relating to Russian efforts to hack a voting-machine system and providing that information to the Intercept) provides the basis for a wide-ranging conversation about the Espionage Act, the First Amendment, and associated policy and legal issues.  Naturally this also leads to previews of Jim Comey’s upcoming Congressional testimony, discussion of Jared Kuschner’s attempt to establish a communications channel with Moscow using Russian government channels, and notes on the latest developments with Mike Flynn.   That in turn leads to a detailed assessment of the prospects for the Supreme Court to take review of the Fourth Circuit’s Travel Ban ruling and to stay the various injunctions associated with the Travel Ban (the government having recently filed applications relating to all of this).  But they save the best for last: the Supreme Court has granted cert. in Carpenter v. United States, which presents the question whether the collection of a sizeable amount of historical Cell Site Location Information (CSLI) from service providers is a search within the meaning of the Fourth Amendment, and if so whether a warrant is required.  Put in plainer terms: The Supreme Court will consider whether the Third Party Doctrine (from Smith v. Maryland) should apply to a circumstance in which new technologies enable information gathering of a kind and scale that might warrant (see what I did there?) a different outcome than Smith.  Finally, Steve and Bobby wrap the show by talking about some of their favorite foreign cities.

This episode is a bit different than normal.  Instead of tearing through the latest developments in the wide world of national security law, Professors Vladeck and Chesney instead provide a deep-dive overview of military commissions.  The explain what that label does and does not refer to, survey the pre-9/11 history (with an emphasis on key Supreme Court decisions like Ex parte Milligan and Ex parte Quirin), identify the key issues raised by the military commission system established after 9/11, track how those issues evolved over time (as the executive branch tinkered with the rules, as the courts weighed in, and as Congress ultimately intervened in 2006 and 2009), and review the state of currently-pending litigation challenging today’s system.  If you’ve been looking for a short-and-sweet way to understand what all the fuss is about, this is the episode for you!

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!