The National Security Law Podcast show

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).

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Podcasts:

 Episode 182: This Podcast Will Keep Going Until They Come For Us! | File Type: audio/mpeg | Duration: 52:15

And we’re back, after a(nother) week off!  What do we have to show for it? Tune is as co-hosts Steve Vladeck and Bobby Chesney as they review: * Steve’s Supreme Court argument in Briggs — more military justice at SCOTUS! * Speaking of the Court: whither the role of the Chief once he’s not obviously the fifth vote? Who will be the new swing justice? And what to make of the Court’s actions this week in the Pennsylvania and Alabama election cases? * Meanwhile, over at the DOJ National Security Division: * Russian military officers indicted for NotPetya and more * A man convicted of material support who was nearing the end of his sentence just picked up an extra 25 years, for it turned out he was using his time to recruit others to carry out attacks and planning some future violence of his own * Two web domains used by Kata’ib Hizballah–a sanctioned foreign terrorist organization–have been seized, for needless to say KH did not get themselves an OFAC license… And then the long-awaited Tom Berenger frivolity!  Jake, Barnes, Longstreet…much to discuss!

 Episode 181: This Podcast Has Lots of Jitter | File Type: audio/mpeg | Duration: 46:48

They may or may not have more presidential debates, but you’ll always at least have us!  Tune in for this week’s episode as Professors Chesney and Vladeck review the latest national security law developments: * The two so-called Islamic State “Beatles” have now arrived in Virginia to face criminal prosecution in civilian court. * Meanwhile, the trial before a military commission of KSM and others charged with involvement in the 9/11 plot needs a judge, again. * In a horrifying illustration of organized domestic terrorism, the FBI and DOJ today revealed the arrest of five men who were plotting to kidnap Michigan’s governor (apparently with plans to them hold some kind of show trial, which then presumably would lead to her murder). * The Second Circuit will not quash the subpoena issued by New York City’s DA (Cy Vance Jr.) for Trump-related tax records. * The 25th Amendment was in the news, bigly, last Friday as President Trump’s health situation deteriorated; we spell out how it works, and then argue over the wisdom of having the Speaker of the House in the statutory order of succession for the presidency * Where in the world is Steve Vladeck…in terms of oral arguments?  He was in the Texas Supreme Court this week, and will be in the Supreme Court of the United States next Tuesday (for Briggs). Meanwhile, we have one word of advice and one homework assignment for y’all: ADVICE: WATCH TED LASSO! HOMEWORK: Be prepared to identify the top 5 best, and bottom 5 worst, Tom Berenger movies (for next week’s frivolity)!

 Episode 180: This Podcast Really Should Be Weekly… | File Type: audio/mpeg | Duration: 1:24:41

We’re not a biweekly show, we promise!  It just seems that way sometimes…like this week, when we are bringing you: * Discussing the passing of Justice Ginsburg and potential implications of the Amy Coney Barrett nomination for national security and rule of law cases * Breaking down the separate opinions enjoining IEEPA sanctions against WeChat (on First Amendment grounds) and TikTok (on IEEPA exception grounds) * The FISC’s 2019 Section 702 certification opinion and ongoing issues of compliance * The Ninth Circuit’s Moalin decision (finding statutory and Fourth Amendment problems with Section 215 bulk metadata collection) * Trump’s taxes: could someone with that sort of debt normally get a security clearance? * Annals of the Bowe Berghdahl case: a military judge who had an eye on an immigration judgeship * A new judge for the 9/11 trial But skip all that if you are in the middle of debate prep, for we also have…a BINGO CARD for tonight!

 Episode 179: This Podcast Is “Considerably Recalibrated” | File Type: audio/mpeg | Duration: 1:14:00

So we took a week off without warning because, you know, 2020.  But we’re back, and we sure don’t lack for things to discuss and debate!  Tune in as co-hosts Steve Vladeck and Bobby Chesney weigh in on: * The NY Times story reporting a request from AFRICOM to expand targeting authorities involving al Shabaab in Kenya in particular. * The President’s denial, and then confirmation, that he favored trying to kill Bashar al-Assad. * DOJ launching a criminal investigation of former National Security Advisor John Bolton. * DOJ moving to interpose the U.S. government as defendant in a defamation suit stemming from President Trump’s answer to questions relating to rape allegations. * A federal judge’s decision to invoke Lochner (!!!) en route to declaring various Pennsylvania public health measures unconstitutional. * Whether the military can subject a person to court martial for an offense allegedly committed prior to a break in service, where the person already was prosecuted (unsuccessfully) in a state court. * The latest twists and turns with TikTok and WeChat under IEEPA and CFIUS And the Mandalorian trailer…OMG OMG OMG

 Episode 178: What Would Robert Jackson Do? | File Type: audio/mpeg | Duration: 1:13:06

We are back after a week off, and apparently your co-hosts used the extra time to sharpen disagreements about old school topics like … GTMO!  Tune in for: * An extended debate over the D.C. Circuit’s Al Hela decision, including everything from the scope of the NDAA FY’12 detention provisions to the applicability of the Due Process Clause at GTMO * A shorter discussion of similar issues that also arose last week in the district court’s ruling in Uthman * About the Hatch Act….I mean, good heavens. We also include a Chadwick Boseman appreciation, in lieu of our usual frivolity.  And it somehow turns into a discussion of deep fakes, too.

 Episode 177: This Podcast Does Not Have a Navy | File Type: audio/mpeg | Duration: 1:07:05

We are back with a new episode, bringing you respectful disagreements and discussion–not to mention heaps of frivolity–about the latest national security law news.  This week, co-hosts Steve Vladeck and Bobby Chesney discuss: * Attorney General Barr’s offer to eschew the death penalty in order to enable the UK to provide the US with inculpatory evidence against the two Islamic State “Beatles” detainees currently in US military custody…and his promise that they mean will be transferred to Iraq for prosecution if this doesn’t occur by October 15. * The GAO’s legal memo concluding that the senior-most DHS officials do not hold their positions lawfully (thanks to the distinction between regular and “catastrophic” vacancy scenarios) * The United States Postal Service strikes back…through the law enforcement officers in its Inspection Service.  Didn’t know that was a thing?  Neither did Steve Bannon, most likely, but that’s who arrested him… * The Fifth Circuit won’t show its cards with respect to whether the all-male military draft rule remains constitutional given that the role of women in the military has changed so much since Rostker…will SCOTUS take the case though? * Some National Security Division updates All that, plus 80s soundtrack frivolity!

 Episode 176: This Podcast Won’t Play Football This Fall | File Type: audio/mpeg | Duration: 1:11:53

We were out last week…what’d we miss? Oh. So, there was much we could have covered this week, but we decided to focus on these three: * The First Circuit ruling vacating the Tsarnaev (Boston Marathon Bombing) death penalty based on concerns about jury bias * The President’s decision to sanction TikTok and WeChat * Legal questions raised by the quartet of executive orders and other presidential directives over the weekend relating to COVID-19 economic relief, including an important federalism question relating to the scope of CDC/HHS pandemic-response authority. As for frivolity: we discuss whether and how college football will unfold this fall (or maybe this spring, or maybe not at all), but more importantly we also ask listeners to weigh next week on an important topic: Best movie soundtracks of the 1980s.  Which is pretty funny because, well, that was the subject of frivolity in Episode 50, and neither of us remembered that while recording the current episode!  In fairness, that was fall 2017, which was like 623 years ago…

 Episode 175: The President Has No Authority to Delay This Podcast | File Type: audio/mpeg | Duration: 1:23:06

We delay this program just fine without his help, thank you very much.  Well, I guess you can see what we are leading with this evening.  The run-of-show: * President Trump’s suggestion about delaying the election * Michael Cohen will be home, and writing, after all * Michael Flynn, on the other hand, can’t be so sure about staying home thanks to the en banc D.C. Circuit (until he gets a pardon, that is) * The Tata nomination in tatters? * Revisiting Portland and trying to zero in on the most significant elements in that story * The Second Circuit’s curious decision in Hassoun All that plus live reactions as the Mets drop another one, as the NBA restarts, and as Watchmen quite rightly rakes in the Emmy nominations.

 Episode 174: Portland Trailblazing | File Type: audio/mpeg | Duration: 1:10:20

This week we don’t lack for topics, to say the least. Tune in for in-the-weeds discussion of: * Trumplandia meets Portlandia 1: What’s the legal basis for DHS components engaging in law enforcement activity there? * Trumplandia meets Portlandia 2: Since when can you just shoot a non-violent person in the head with a “less-than-lethal” round? * Trumplandia meets Portlandia 3: What’s the legal framework for DHS collection and analysis of intelligence relating to property-protective missions? * Meanwhile, Michael Cohen litigates BOP’s ability to send him back to jail for publishing a book * Meanwhile, in regular law enforcement: terrorism charges for an MS-13 leader * Meanwhile, at GTMO: A remarkable sanction against the government issued by the trial judge in the Majid Khan military commission case * Meanwhile in Europe: The Court of Justice of the European Union blows up Privacy Shield based on concerns involving Section 702 and also 12,333 collection * Meanwhile in the 9th Circuit: A sharp dispute over the interaction of FISA and the state-secrets privilege just might set the stage for SCOTUS to weigh in And then, after all, we have what we must admit was a desultory frivolity segment.  Though maybe that is purposeful performance art, projecting how the MLB “regular season” is going to feel…  

 Episode 173: This Is John Roberts’s Podcast | File Type: audio/mpeg | Duration: 1:17:46

We’re back, with a Supreme-Court focused episode!  Tune in for: * The Supreme Court’s twin decisions in the New York grand jury and Congressional subpoena cases * The consequences of those decisions for related litigation such as the Don McGahn subpoena case * The McGirt decision on the Muskogee nation’s control of territory in eastern Oklahoma * The petition for en banc review in the Michael Flynn case As for frivolity, how could it be anything other than the Hamilton movie?

 Episode 172: Cleanup on Aisle Trump! | File Type: audio/mpeg | Duration: 1:02:09

This week on NSL Podcast, co-hosts Steve Vladeck and Bobby Chesney review and debate the latest national security legal news, including: * Russian “bounties” on U.S. forces in Afghanistan, including (theoretical) legal implications * A district court ruling finding the government lacks sufficient evidence to hold Adham Hassoun under Section 412 of the USA Patriot Act * The Julian Assange prosecution: new fact allegations that might help distinguish his situation from that of conventional journalists * An actual bill in the Senate addressing the “going dark”/Crypto Wars 2.0 debate: The Lawful Access to Encrypted Data Act * SCOTUS roundup: Article II and the power to remove; extraterritorial constitutional rights; Congressional access to grand jury material; the Alien Tort Statute, foreign sovereign immunity And for frivolity?  In honor of the upcoming Disney+ stream of Hamilton, we consider the song (with a strong assist from Kirk Hamilton’s Strong Songs podcast).

 Episode 171: There’s a Spectrum of Corruption | File Type: audio/mpeg | Duration: 1:21:05

We’re back with an evening recording, as co-hosts Bobby Chesney and Steve Vladeck weigh in on: * The D.C. Circuit’s Mike Flynn ruling, and the likely path ahead * The bizarre process of removing SDNY US Attorney Geoffrey Berman * The Bolton book ruling * The Veterans Memorial Preservation Act * PCLOB’s FISA session earlier this week * The SCOTUS ruling on Expedited Removal and the Suspension Clause And then we gripe, a bunch, about rules MLB did and did not adopt for their upcoming rump season.

 Episode 170: This Podcast Is Not Subject to (Prior) Restraint | File Type: audio/mpeg | Duration: 1:09:54

In the latest episode of the National Security Law Podcast, co-hosts Professors Steve Vladeck and Bobby Chesney discuss: * Juneteenth, the Emancipation Proclamation, and War Powers * DOJ’s doomed effort to get a prior restraint preventing publication of John Bolton’s already widely-distributed book (and, in contrast, DOJ’s strong prospects for getting a constructive trust for breach of contract) * Espionage Act liability for leaking national security information: a 30-month sentence for a former DIA analyst this week, and speculation about how it would look if DOJ took this approach with John Bolton * The Supreme Court’s DACA ruling: wrestling with the nuances of the decision * There were no National Guard air assets conducting surveillance in DC…unless maybe there were? * There were no Pennsylvania National Guard personnel in DC…unless maybe there were? * Oh, look, international armed conflict between China and India… * The Uighur Human Rights Policy Act of 2020 becomes law: understanding how it relates to IEEPA, where it does and does not provide wiggle room for the president, and whether its plain terms warrant application to President Xi and other senior Chinese officials. As for frviolity: Sportsball is almost back…but will the NBA or MLB really deliver games?

 Episode 169: Now We’re a Third Amendment Podcast | File Type: audio/mpeg | Duration: 1:29:19

After an extra-long break, we are back…and swamped!  Tune in for debate and discussion of, among other things: * The National Guard deployments to Washington, DC, including questions of status, command, and authority * The special circumstances of the DC National Guard (and, relatedly, the issue of DC statehood) * The Third Amendment, hotels, and originalism??? * Civ-Mil relations and the weird weeks for General Milley and Secretary Esper * The Tom Cotton Op-Ed and the NY Times’ response to the fallout from it * The NDAA and proposals to mandate renaming of US military bases named for Confederate Generals * GTMO, military commissions, the Majid Khan ruling (to the effect that torture can be cited as grounds for mitigation at sentencing), and implications for the 9/11 prosecution and capital punishment * President Trump’s Executive Order declaring a national emergency vis-a-vis the prospect of ICC action against U.S. personnel, and the corresponding creation of a sanctions regime against not just ICC personnel involved in such actions but also against those who materially support them. And a surprisingly belated-yet-timely review of HBO’s Watchmen series.  Seriously, if you haven’t watched it yet, get started!

 Episode 168: On the Brink with the Insurrection Act | File Type: audio/mpeg | Duration: 53:23

Tonight we bring you a special episode, recorded jointly with Ben Wittes as an episode of the Lawfare Podcast.  Ben, Bobby, and Steve explore the threatened invocation of the Insurrection Act by President Trump, the president’s existing use of the DC National Guard, the president’s assertion that he will designate Antifa as a “domestic terrorist organization,” and the use of tear gas and rubber bullets to clear protesters out of Lafayette Square Park in order to facilitate a presidential photo op.

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