The National Security Law Podcast

Welcome back to the nerdiest national security law show around!  Tune in this week for debate and discussion between Steve Vladeck and Bobby Chesney regarding: * Inspector General firings * Presidential Emergency Action Documents * Mike Flynn’s sentencing as the OJ Simpson Trial * Apple, FBI, and the Pensacola AQAP plot as the latest salvo in the Going Dark/Cryptowars debate * The ruling of Germany’s Federal Constitutional Court in the BND surveillance case * The D.C. Circuit ruling in Ali, a GTMO habeas case concerning the application (or not) of the Due Process Clause All that…and, well, Sofia the First and Elena of Avalor.

Welcome back to the National Security Law Podcast, after a one-week hiatus!  (You can actually watch the recording here, if you need more Zoom in your life). In this episode, Steve Vladeck and Bobby Chesney discuss and debate: * This week’s SCOTUS oral arguments in the Trump business subpoena cases.  Is a pragmatic compromise in the works?  Will the DA and HPSCI emerge winners? * DOJ called, and they want to abandon their successful prosecution of Mike Flynn because…well, res ipsa loquitor. * Speaking of Mike Flynn, the “unmasking” pseudo-controversy is back. * FISA amendment mayhem!  A bid to prevent use of Section 215 for browser records *just* fails to make it into the Senate bill, and then a boost to the amicus system–and the rules on disclosure of exculpatory evidence and on Woods procedures compliance–makes it over the goal line easily.  But will the House follow suit? * Something about war powers something something veto or something…is anyone watching??? And then there was the season finale of Westworld.  It’s like they just ran out of good ideas…

What a fun episode!  Co-hosts Bobby Chesney and Steve Vladeck recorded “live” before the Austin Bar Association, as the finale of their day-long Zoom conference.  On tap: * The ODNI report on FISA statistics: We have a detailed discussion of the highlights, focusing on whether there is cause for alarm in the renews that FBI in some instances failed to get a warrant (as required by statute) before accessing the content of U.S. person communications incidentally collected via 702. * Pandemia: What’s the real story with the latest Defense Production Act order, the one directed at the meat-processing industry? * Flynn-sanity:  Will Mike Flynn be pardoned, and if not will recent developments involving the FBI’s activities impact his sentence? * Will the Supreme Court pave the way for judicial enforcement of Congressional subpoenas of Trump business records, or will it instead foreclose that possibility (and much more than that)? * Hey, look, another judge for the 9/11 case at GTMO! All that, plus a review of WestWorld episode 7.

Is this our most-substantive episode ever?  No, no it’s not.  Is it a sign that co-hosts Steve Vladeck and Bobby Chesney are going a bit stir crazy?  Perhaps so.  Does it feature cute cameos from Steve’s kids and his dog? Yes, that it does! (Which is why you probably want to peek at the Zoom video recording of the session, which is here!)  At any rate, tune in for: * Pandemia: We discuss and debate the implications of the Attorney General’s cryptic reference to the possibility of Justice Department intervention in litigation against states in connection with state public health policies.  More war on federalism, or nothing-to-see-here? * GTMO has a new Convening Authority!  (Sorry, did you say “What’s a Convening Authority”????) * SCOTUS wants to weigh in, at last, on the meaning of “exceeds authorized access” in the Computer Fraud & Abuse Act.  This could turn into the second-most-famous Van Buren! That’s actually it for substance.  But don’t think they won’t talk for 15 minutes about WestWorld.

And we’re back, with discussion of the latest national security law news. (Video of the show here!)  This week, co-hosts Steve Vladeck and Bobby Chesney nerd out with the details on: * Can he do that? President Trump says he might adjourn Congress so as to be able to use his recess-appointment power.  Inquiring minds want to know: is that a thing? * Oh, also: can he do that? President Trump also says he has “total authority” over whether and when the economy should reopen, and Vice President Pence says that POTUS has “plenary” power in this emergency setting.  Inquiring minds also want to know if that is a thing.  So, we end up with a somewhat-deep dive into, of all things, the Supreme Court’s decision in In re Debs. * Wait, who’s the judge now? There’s yet another new trial judge for the 9/11 case at GTMO.  What’s the record for a single trial???  Meanwhile, it appears that this one has denied a defense request for access to otherwise-unavailable parts of the SSCI “Torture report.” But forget all that.  The real action, as usual, is the frivolity.  Westworld’s latest episode is on tap!  

We are “live” from Penn Law today!  Thanks to the Penn Law National Security Society, not to mention the magic of Zoom, we recorded today with a virtual audience.  Tune in for your co-hosts, Professors Chesney and Vladeck, as they debate: * Paracha v. Trump: A blast from the past: a district court habeas ruling on the legal and factual foundations for holding a GTMO military detainee, one that raises fascinating (and relatively novel) questions about the use of military detention in circumstances where the detainee might not be a member of an AUMF-covered group but who did provide material support to such a group.  This in turn leads to a debate about the relevance of international law to that question, and then that leads to a discussion of what international law actually has to say about such fact patterns. * Pandemia: * We’ve got an actual, real-live action under the Defense Production Act: a ventilator-production contract with GM!  We review the direct use (and non-use) of “the P!”, noting how the mere invocation of it (even without actual use) not only plays a political role but also, perhaps, plays a subtle but important role in changing negotiation postures. * We’ve got a fascinating Fifth Circuit decision, In re Abbott, that raises complex doctrinal questions about how to reconcile the compelling state interest in public health during a pandemic with individual rights claims (in this case abortion rights, but there are plenty of other possibilities), and what the right reading of Jacobson v. Massachusetts (1905) is with respect to that question.  Does all rights claims reduce to the protections of mere rational basis review in such settings?  Or should we instead apply the usual doctrinal frameworks for analysis of a particular right, but with full recognition of the unusually-compelling nature of the offsetting government interest? For example, would you really apply mere rational-basis review if a state decided to make it a crime to advocate in favor of relaxing shelter-in-place rules? * Modly, we hardly knew ye!  Modly’s ill-advised speech to the crew of the Theodore Roosevelt went over like a lead balloon…one that eventually landed on his own head. (ed. note: that makes no sense….) * Beware, IGs!  It’s legal for the president to remove them, but is it right to do so? * FISC fallout from Horowitz Part II: Horowitz is one IG who is not on the hotseat, it’s safe to say!  Hot on the heels of his report blasting FBI for shoddy compliance with its own “Woods procedures,” the FISC is out with a strict order demanding to know whether those compliance problems might eventually have led to incorrect or incomplete representations to the FISC…and, what’s more, it wants such scouring done not just for the 29 cases Horowitz sampled but also across the FISC docket, with bimonthly reporting to the FISC on progress.  Not a fun time to work at FBI GC! * Sandig v. Barr – Judge Bate holds that to violate the Computer Fraud and Abuse Act’s “unauthorized access” condition, one must engage in some kind of circumvention of security measures, and that it’s not enough that you are unauthorized in the separate sense of doing something that violates “terms of use/service.” This will help solidify a trend of rulings in that direction. But enough law and policy.  Gimme WestWorld Season 3, Episode 4!

It’s not April Fool’s trick, we really are back with a new episode covering the latest in national security law news. Watch the video here, if you aren’t getting enough Zoom.  This week we’ve got: * DOJ’s Inspector General has come out with the first of what may be a series of reports on the quality of FBI’s procedures in preparing FISA applications.  This one is about compliance with the “Woods Procedures,” and it is not a positive story for FBI.  We explain, and we debate what follows from this. * Will we see more uses of force against Iranian proxies in Iraq? A New York Times article and a presidential tweet raise the question. * Meanwhile, returning to our all-too-familiar pandemic beat: we note the emergence of various rights claims–free exercise, abortion, guns–in relation to shelter-in-place/business-closure rules Best of all, of course, is the frivolity.  If you are keeping up with WestWorld, we talk Episode 3 this week.

This is our second lockdown episode, simulcast as a Zoom-based video!  If you didn’t believe us before about our commitment to production authenticity, well you will if you watch the video version! [ed. note: guys, that’s not funny, you can’t blow off your lack of production values and slapdash approach to all this by claiming it makes you “authentic”!]  You should be able to download it here: https://utexas.app.box.com/v/NSLepisode160 Happily, we are joined this week by Prof. Jen Daskal from American University’s Washington College of Law.  Jen is our first two-time guest on the show (our first live event was with her students at American last year)!  Tune in for discussions of: * The power of the federal government (or lack thereof) in relation to state public health directives to shelter-in-place or otherwise restricting movement * The President’s emphatic invocation of “P!” directed at GM today…to which we say, covfefe! * What might occur in the weeks ahead in relation to data-gathering in support of public health measures (especially exposure-tracking and quarantine enforcement) * The United Kingdom’s Supreme Court ruling in “the Beatles” case, refusing to allow the Home Secretary to pass the fruits of a British criminal investigation to the US Justice Department because the United States intends to seek the Death Penalty in that case.  Will we now see a shift to prosecution without the death penalty, or instead ongoing military detention? And if the latter, will it hold up in court? And then there’s the frivolity. If you are ready to talk Picard or West World, we are here for you!

We may be on home lockdown, but that didn’t stop us from recording!  Thanks to the magic of Zoom, we gathered online to record this episode, and just for kicks we recorded the video while we were at it.  So, if you ever wondered what sort of faces we make at each other while recording, well, now’s your chance.  We’ll put the link for the video out, via the NSL Podcast twitter feed (@nslpodcast).  Enjoy! As for substance: * The expiration of the Lone Wolf, Roving Wiretap, and Section 215 authorities, and the current uncertainty over whether they’ll be renewed eventually * The current pandemic: we explore the major categories of potential federal action, distinguishing the missing efforts to boost the supply of PPE, ventilators, and the like from topics like federal quarantines, travel restrictions, and infection-exposure surveillance. Where is the Manhattan Project/Moonshot level effort to surge production??? * Reports of a DOJ proposal for legislation addressing criminal justice process when courts are shutdown or disrupted by the pandemic.  Is it a Suspension when there’s a suspension of operations? And then there’s Picard.  We review the two most-recent episodes!

Are you “working” from home now?  Perhaps it’s time to take a break and enjoy the latest episode of the National Security Law Podcast.  In a discussion that takes the goal of let’s-not-prepare-too-much to new heights, your co-hosts Professors Bobby Chesney and Steve Vladeck are back to talk about: * potential reauthorization this week of the three FISA provisions that otherwise will expire on March 15th * the public-health imperative of flattening the curve when it comes to the spread of COVID-19 (that is: the critical need to ensure cases don’t outpace hospital capacity, including especially ICU capacity), and the resulting need for preemptive social-distancing measures * today’s release of the Cyber Solarium Report (ok, they don’t really talk about it, but they do note that it happened!) * a recent speech by the Defense Department General Counsel regarding the law of military cyber operations * another recent speech by the Defense Department General Counsel, this one setting out the most-detailed argument we have yet seen from the U.S. government regarding the domestic and international legal issues associated with the Soleimani airstrike * a D.C. District Court decision finding that Army Regulation 190-8 is legally enforceable via habeas as to a GTMO detainee, and on that basis concluding that a medical-necessity repatriation may be in order for one of the detainees * a decision by the International Criminal Court to authorize its prosecutor’s office to investigate war crimes in Afghanistan, including allegations of American war crime (well, like the Solarium report, we don’t so much talk about this as we note it occurred and promise to talk about it more…later) And, of course, we talk about the latest episode of Picard.  Your frivolity homework, by the way, is to watch the season premiere of Westworld next week.  And note: no episode next week, due to Spring Break.  We’ll be back after that!

Back-to-back episodes!  After yesterday’s interview-focused show, we wanted to get right back into the mix with discussion and debate over the latest national security law news.  Tune in for: *  Beyond quarantine: What happens when local authorities declare an emergency and then bar people *released* from quarantine from being in the city? San Antonio wants to find out… *  So Ken Cuccinelli is *not* the Acting Director at US CIS, because he was not properly made the “first assistant” in the chain of succession. Or so says the other Randy Moss. * FISA FOIA fix?  A court finds that when the White House said they declassified some Carter Page FISA material, but had not actually done so, FOIA’s national security exemption still applied as a result. *  Peace with the Afghan Taliban?  We will see.  And we will see, too, what this might mean for “unraveling” the background premise that the law of armed conflict remains applicable as between the United States and al Qaeda-related detainees still in military detention at GTMO. *  What does it signify to say that someone “loyally gets appointed”?  A grammatical mess, perhaps, but the phrase nicely captures the current President’s (already familiar) understanding: if you work anywhere in his organization, personal loyalty is job one. *  Loads of developments relating to the Trump administration’s immigration policies, particularly relating to asylum claimants. But nevermind all that.  Tune in just for the Picard frivolity at the end!

We are back with an interview-focused episode! Tune in as Professors Chesney and Vladeck interview Brigadier General John G. Baker, USMC.  General Baker is Chief Defense Counsel for the military commissions at Guantanamo. And, yes, there’s frivolity at the end…Bills-themed frivolity!

This week in the wild world of national security law, your co-hosts Professors Vladeck and Chesney discuss and debate: * The prospects for legislative change to FISA (the Foreign Intelligence Surveillance Act), including notes on a currently-pending bill in the House * Trumplandia and the ODNI: The statutory deadline for the Acting ODNI (now Richard Grenell) to continue to perform that function is March 12.  That deadline will be tolled by an actual nomination, but failing a nomination what then? Tune in to find out. * Trumplandia and the courts * The City of Costa Mesa sues everybody after learning that the CDC might send asymptomatic but covid-19 positive individuals into isolation there. * SCOTUS rejects Bivens status in Hernandez, the cross-border shooting case * Judge Leon declines to dismiss the Larabee suit (challenging the idea that retired servicemembers remain subject to UCMJ jurisdiction. And then, for frivolity: a review of the new Star Wars ride (Rise of the Resistance) at Disneyland; a review of Come From Away; and a review of the latest episodes of Picard.

This week on NSL Podcast, co-hosts Steve Vladeck and Bobby Chesney discuss and debate: * The U.S. government’s formal statement to Congress on the legal rationale for its airstrike against General Soleimani * Trumplandia and law enforcement: the related, but distinct, issues associated with the use of the Pardon Power and the relationship between the President and federal prosecutors * Does 18 USC 1114 apply extraterritorially? A D.C. Circuit panel holds that the federal statute making it a felony to murder a federal officer does not apply overseas. * Judicial clerkships:  Not a national security topic, but an important one for law students–and the rest of us–to ponder. The frivolity this week was supposed to be a review of the three most recent episodes of Picard.  But no, Bobby had to go and ruin it by calling a halt to the recording right at the end in order to go attend some “meeting.”  Likely story!  Alas, no Picard until next week.  On the other hand, there’s some spontaneous frivolity at the beginning of the show regarding the Astros scandal.  So, you’ve got that going for you, which is nice!

And we’re back, with a fresh episode at last.  Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss and debate the latest national security law developments.  This week they cover: * Donald Trump pressuring Main DOJ to override the sentencing recommendation made by line prosecutors in order to help Roger Stone * Donald Trump pressuring DOD to retaliate against Lt. Col. Vindman (followed by, coincidentally, our discussion of the Military Whistleblower Protection Act) * A quick overview of federal quarantine law, just in case… * The case of Omar Ameen and legal issues associated with non-refoulement * The War Powers bill in the Senate: what would it actually mean to “withdraw” from hostilities with Iran, while still being in Iraq and Syria to fight the Islamic State? * Steve gets all the colors! (You have to listen to find out what that means) We end, as always, with frivolity.  Oscar awards recap time!