The National Security Law Podcast

In this week’s episode, Professors Vladeck and Chesney discuss and debate: * The district court ruling in Trump v. Committee on Oversight, in which the court rejects an attempt to quash a subpoena directed at an accounting firm that handled work for various Trump organizations. * The Office of Legal Counsel (OLC) opinion asserting blanket testimonial immunity for former White House Counsel Don McGahan. * The prospect that President Trump might invoke the Insurrection Act in order to have authority either to bring state National Guard forces of federal armed forces into service in relation to the capture and removal of migrants inside the United States. * The prospect that President Trump will issue pardons to U.S. servicemembers subject to court martial for war crimes. * The prospect that SCOTUS or Congress might one day modify the Feres doctrine, which precludes servicemembers from suing under the Federal Tort Claims Act. * The conviction of a naturalized U.S. citizen from Lebanon who had became an agent for Hezbollah’s external operations arm. * The 20-year sentence meted out to a former CIA and DIA officer who passed classified information to Chinese authorities. And of course we have something to say about the finale of Game of Thrones!

In this week’s episode, Steve Vladeck and Bobby Chesney debate and discuss the latest national security legal news, including: * Iran – The prospect of some form of armed conflict with Iran, and the various legal issues this raises.  Among other things, we address the 2001 and 2002 AUMFs, the War Powers Resolution, Article I and Article II War Powers, and UN Charter Article 51.  The discussion highlights the central role (legally, politically, and diplomatically) that might be played by a precipitating incident either in the Persian Gulf or in Iraq. * Military Commissions – While there is no major development to report, we do have an array of smaller decisions on matters relating to recusals, preservation of evidence, and the like. * SCOTUS – We coin the phrase “starry-eyed decisis” as we explore this week’s portentous stare decisis dispute in the state sovereign immunity case. * Media and Propaganda – We note a DOJ victory in securing an order requiring a Florida company to register as a Russian agent based on its broadcasting of Sputnik content. * Honestly, it wasn’t wise to cheat on sanctions – We discuss DOJ’s effort to seize a North Korean vessel (the Wise Honest) that was impounded in Indonesia for sanctions-busting. * Leak Prosecution – We compare the prosecution of Daniel Hale for leaking classified information to Jeremy Scahill and the Intercept, contrasting the scenario with that involving Chelsea Manning, Julian Assange, and Wikileaks. * Too Conflicted? DOJ is trying to oust former Deputy AG James Cole from representing Huawei.  We discuss this unusual intersection of the DC revolving door with the challenge of protecting classified information in litigation. Oh, the frivolity?  Yes, there was a tv show on Sunday night.  Something about thrones and dragons.  Your hosts have opinions.

And we’re back!  Tune in as Professors Chesney and Vladeck discuss and debate the latest national security legal news, including: * The legal framework for Congressional subpoenas (and the problems that arise when the Executive Branch is not inclined to support prosecutions to enforce criminal contempt) * The policy and legal issues raised by an Israeli airstrike on a Hamas facility associated with cyber operations, which occurred in the midst of a massive exchange of rockets, missile, mortars, and more * A conviction in a material-support-to-IS case in which the support consisted of online recruiting, which raises interesting questions from a First Amendment perspective * An arrest in a bizarre case in which a contractor engaged in translating wiretaps of a terrorism suspect tried to hide the fact that the suspect was recorded calling, well, the translator * A guilty plea for a former CIA officer who was recruited by Chinese intelligence through financial inducements Ah, but all that is just the appetizer.  Game of Thrones Episode 4 ran on Sunday night, and these guys are not happy about how it went…

After a one-week hiatus, the NSL Podcast is back!  Tune in for debate and discussion as Professors Vladeck and Chesney talk about: * The Mueller Report and its aftermath * Impeachment vs Censure * The Trump Subpoena litigation * The summary judgment decision in Jewel v. NSA (concerning a would-be class action challenging warrantless surveillance) * An update on the question of whether Section 215 will be renewed in whole or in part * The latest ODNI statistics on the use of surveillance authorities (with an emphasis on “unmasking”) * A wave of recent DOJ prosecution developments involving China and espionage, counterterrorism, and other matters Oh, yes, there also apparently was an episode of Game of Thrones the other night.  A battle of some kind?  These guys have some opinions…

This week we debate three timely topics: * Al Nashiri Part 7,146: the D.C. Circuit has issued a unanimous ruling slamming former Judge Spath for failing to disclose a manifest conflict of interest, slamming pretty much everyone else involved in the process for failing to see that this is a problem, and vacating all of Judge Spath’s hundreds of orders since he put in his application to become an Immigration Judge. * Hernandez Part II: The Solicitor General has recommended a cert. grant in Hernandez, the cross-border shooting case, on the Bivens question (though not the Westfall Act question). * Third Party Data and the Impact of Changing Customer and Cultural Expectations: News that law enforcement officials obtained a warrant compelling Google to share customer location data in quasi-bulk fashion draws attention not to the evolving Fourth Amendment, but rather to evolving public expectations about what data companies should hold to begin with. Oh, and something about some TV show with dragons, zombies, kings and queens, and so on.  Have to stay for the frivolity at the end to see what that’s all about.

Live episode!  We recorded this morning before a live audience at the University of Texas School of Law reunion weekend.  It was a packed house of terrific alumni, and happily the week’s news conspired (pardon the pun!) to give us plenty to discuss.  Tune in for a breakdown of: * Julian Assange: An exploration of the Computer Fraud and Abuse Act conspiracy charge, what this means in relation to long-standing concerns about a chilling effect on the media, how the charge unexpectedly avoids a statute of limitations problem, and what issues might arise with extradition. * Yemen and the War Powers Resolution: S.J. Res. 7, compelling a withdrawal of U.S. forces from involvement in “hostilities” in relation to the Saudi coalition conflict with the Houthis in Yemen, is on its way to the president’s desk.  We parse the legal meaning of “hostilities” in general and in relation to the particular language of this bill, and ask whether this really is a bold moment from Congress or mere window-dressing. * The Acting DHS Secretary: The switch in leadership at DHS last week proved to be a (temporary) mess because someone didn’t do their legal due diligence.  We explain what went wrong and how it got fixed. * IRGC as a Foreign Terrorist Organization: We explore the legal and practical significance of the State Department designating Iran’s Republican Guard Corp as an FTO, including the impact of  18 USC 2339B on companies abroad that might be doing business with the IRGC. We also note the much-less discussed fact that Treasury made an analogous sanctions decision, under IEEPA, already.  And then we draw attention to a bigger question: what does this action reveal about administration thinking regarding whether Iran plausibly can be said to be harboring al Qaeda for purposes of the 2001 AUMF? Frivolity: Time for some harmony…today we debate the best musical duos and duets of all time. Bonus: We also have some great Q&A, at the end, with the terrific alumni crowd.  Hook ’em!  

Join us as Professors Vladeck and Chesney discuss and debate the latest national security law news!  This week we’ve got: * The Adham Hassoun case: Can the government hold a terrorism-related individual in long-term immigration custody after he completes a prison sentence and while it remains unclear to which country (if any) he can be sent? * The DEA’s Use of Subpoena Authority to Get a Broad Set of Customer Identities from Companies Selling Cash-Counting Machines: Is this, in some sense, a bigger deal than the “bulk telephone metadata” story? * The Bilal Kareem case: Can Kareem’s suit (which argues the he is on a USG “kill list” in Syria and that this violates the Due Process Clause among other things) survive a motion to dismiss based on the State Secrets Privilege? * SCOTUS and Cruel and Unusual Punishment: Does the Bucklew decision portend doctrinal change for the 8th Amendment, and perhaps also a “barbell” effect for the post-Kennedy Court? * The Article II Take Care Clause: What is the difference between declining to enforce a statute on constitutional grounds and declining to defend it in court (and how does any such distinction apply to the White House decision to oblige DOJ not to defend the Affordable Care Act on the individual-mandate and severability issues)? And just when you think it can’t get any nerdier, it’s time for the frivolity–and for the Thrones Deadpool!

We are back after a spring break hiatus, and we do not lack for things to discuss and debate in the wide world of national security law.  Tune in for: * What we can make of the Mueller Report and the Barr Letter at this point * Whether the president is subject to civil suit in state court while still in office * Whether the US government loses its sovereign immunity from suit without consent where the claim involves a violation of a “jus cogens” rule of customary international law, as Judge Brinkema has ruled in al Shimari * What to make of the Court of Military Commission Review’s newest ruling in the Bahlul litigation, including affirmation of Bahlul’s life sentence * Whether Congress should pass a statute to ensure that servicemembers have a realistic path to SCOTUS review in cases of courts martial that do not result in the Court of Appeals for the Armed Forces taking their case * Whether Belgium’s “IHL Exclusion Clause” concept (precluding application of domestic criminal law relating to terrorism as to situations involving armed forces engaged in armed conflict) might end up precluding certain U.S. extradition requests involving material support charges * Why the release from prison of John Walker Lindh (once famous as “the American Taliban”) might portend a larger debate (and what does this have to do with his Irish grandmother???) And of course it would not be the same without some frivolity.  We’ve got opinions about True Detective Season 3, traveling with infants to LA, the NCAA Tournament, and Hall and Oates. Seriously.

This week’s show features debate and discussion between co-hosts Professors Steve Vladeck and Bobby Chesney regarding: * Paul Manafort: comparing his first and second federal sentences, and the timing of the new New York State charges * Yemen: Congress considering a bill to compel an end to US support for the Saudi-led coalition in Yemen, and the President promising a veto * The Border Emergency: Congress is poised to pass a bill terminating the asserted national emergency at the border, but that too faces a certain veto * The ARTICLE ONE Act: Heaven save us from awkward, forced acronyms.  But perhaps don’t save us from useful changes to the National Emergencies Act? The good, bad, and …incomplete?…about the proposed “ARTICLE ONE Act.” * The IoT Cybersecurity Improvement Act: We’ve got a brief breakdown of this useful new bill. * Transgender Military Service and Judicial Deference: Judges Wilkins and Williams have it out in Jane Doe 2 v. Shanahan. * Habeas for Undocumented Persons in Detention? This case looms very large, and involves a circuit split. * Once More Unto the Breach…with Larabee II! * A Double-Jeopardy Windfall? Double-mishandling of double jeopardy in US v. Rice? * Online Material Support to the Islamic State: The arrest of Kim Vo in Georgia. And then, just because these two don’t know when to stop, there’s the frivolity: musings about US News Rankings, debate over the college admissions bribery scandal, and a surprise appearance by … Hall and Oates?  You make-a-my dreams come true, dear listeners!

So much to debate, so little time! Tune in as Steve Vladeck and Bobby Chesney plow through a host of recent (and not-so-recent) events in the world of national security law: * Fazaga v. FBI – an important 9th Circuit decision on the interaction between the State Secrets Privilege and FISA, not to mention the question of how the reasonable expectation of privacy test might imply in the context of conversations in a mosque. * The demise of the USA Freedom Act phone records program? News that the program may have been dormant for the past six months has raised some hard questions at a time when a sunset is looming for it. * Chelsea Manning and possible charges against Julian Assange or Wikimedia: does this portend Computer Fraud & Abuse Act charges that might enable prosecution of Assange/Wikimedia in a manner that is less relevant for traditional journalists? * President Trump’s determination to override the IC’s recommendations on security clearances * The Senate is poised to join the House in voting to overturn the border emergency declaration, but a veto override is unlikely. * The 200th anniversary of McCulloch v. Maryland * Today’s Executive Order in which President Trump revokes President Obama’s EO 13732 Section 3 requirement of annual disclosure of airstrike numbers and civilian and combatant casualties outside of areas of active hostilities (i.e., areas other than Afghanistan, Syria/Iraq, and Somalia). As for frivolity, let’s just say that Winter Is Coming on April 14, and we have a season 8 trailer to parse!

The Oscars may not have a host, but we do!  Tune in to our latest episode as co-hosts Steve Vladeck and Bobby Chesney debate a wide range of national security developments from the past week, including: * May “ISIS bride” Hoda Muthana return to the United States?  Secretary Pompeo has announced that she may not, on the ground that she is not a citizen.  We review and debate a slew of issues this raises, including the legal frameworks for birthright citizenship, making determinations about citizenship status, expatriation, statelessness, and more. * Should the State Department formally designate one or more drug cartels as “Foreign Terrorist Organizations,” triggering an array of consequences including making 18 USC 2339B–the famous 1996 “material support” law–relevant? * Is the D.C. Circuit poised to rule that the Fifth Amendment Due Process Clause (in its procedural aspect) applies at GTMO, and what clues do we glean about this from the decision to deny preemptive en banc review in Ali? * Speaking of the Fifth Amendment: Does the male-only nature of Selective Service Registration violate the protection against gender discrimination located in the equal-protection aspect of the Due Process Clause, now that women can have combat roles? But these two can disagree about much more than the law.  They’ve got opinions on the Oscars too…

Ready to dive deep, way deep, into the president’s national emergency declaration and the resulting lawsuits?  We’ve got you covered.  Tune in as Professors Vladeck and Chesney tease out and debate the nuances. Along the way, enjoy updates on three interesting cert. denials today at SCOTUS as well as the suddenly-looming question of whether the 2001 AUMF’s long-quiet “harboring” provision might be used to provide the domestic legal basis for military action against…Iran?  

Your favorite weekly show combining serious debate about the latest national security legal developments with a healthy dose of frivolity is back! [ed. note: this is the only show like that, so you should delete the awkward bit where you claim this is their “favorite] This week we open at the Supreme Court: What are the stakes in the Larabee litigation concerning the recall of retired military personnel in order to subject them to court-martial jurisdiction?  Is there anything to the claim in Hamidullin that U.S. courts should grant combatant immunity from prosecution to a Russian veteran who ambushed US and Afghan forces in 2009?  And while we’re talking SCOTUS, what was the deal with lifting a stay in a death penalty case in which a state was not in a position at that moment to provide access to a religious figure of the right persuasion during an execution? [ed. note: guys, guys…stay focused, that’s not exactly a national security case] The Hamidullin case actually segues nicely [ed. note: Thank you for not writing Segway like you usually do.] to a review of the legal and other challenges that will arise if captured Islamic State fighters are taken to GTMO as part of a larger deal to resolve the fate of a large group of IS fighters currently held by SDF forces. [ed. note: I deleted the line where you made up a claim that an SDF wrote to you to say “Screw you guys in the West, we aren’t going to keep holding IS fighters from your countries if you are going to pull out of Syria and leave us to the mercy of Assad, the Russians, the Iranians, the Turks, etc.  Detain ’em yourselves!”  No one will believe they wrote you, however accurate that sentiment may be.]   Speaking of terrorists behind bars, we’ve also got the unbelievable situation that recently unfolded in Germany, where a guy served a (comparatively-short) sentence for involvement in a plot to kill Americans in Germany, and the United States had just unsealed an indictment charging him with crimes in Afghanistan including the death of two U.S. soldiers.  Extradited to the U.S., right?  No, sent to Turkey, apparently based on a double-jeopardy theory.  Vas ist das? [ed. note: I changed your, ahem, more colorful sentence to the more-polite “vas ist das.”  Diplomacy, guys, diplomacy.  After all, you don’t read German and probably have the underlying facts at least partially wrong.] Well, as long as we are talking about the arrest of terrorism suspects, we’ve got a National Security Division update involving the arrest of two guys who were supporters of Lashkar e-Tayyiba, the Pakistan-based terrorist group responsible for the 2008 atrocity in Mumbai.  One of the guys had expressed interest in training to become an executioner, particularly on the beheading side of that line of work. Next, we have a very quick run-through of the legal issues raised by Project Raven, based on the recent Reuters story describing former NSA employees working as contractors for the UAE’s SIGINT service.  Pro tip: If you go to work for the UAE’s SIGINT service, do not act surprised when you find out they are monitoring political critics.  [ed. note: This whole bit on the show was just a half-baked recap of what Bobby wrote on Lawfare here.]   But you are in it for the frivolity, no?  [ed. note: no, no they are not.]  Excellent!  Well, we’ve been going to concerts and watching the Grammys, and we have strong opinions about all of it!  [ed. note: oh, joy, they have opinions about professional musicians. No doubt they’ll ask you two to tag-team host the Grammys next year.]

This week on the National Security Law Podcast, we’ve got: * A heavy pace of airstrikes against al Shabaab targets in Somalia * Ruminations on declining media attention (and the prospect of a sharper dropoff soon) to things relating to GTMO * A 15-year sentence in an Islamic State material support case * A magistrate recommends vacating the conviction of Hamid Hayat for ineffective assistance of counsel, some thirteen years after his original conviction under the 1994 material support statute (28 USC 2339A) (in a remarkable example of that statute’s potential scope, about which Bobby wrote here more than a decade ago). * SCOTUS preview:  The Court soon will consider the cert. petitions in Larabee (where Steve is counsel, and which raises questions about the ability of the military to recall former servicemembers to active duty in order to court martial them) and Hamidulin (where the Fourth Circuit rejected a Taliban fighter’s claim of combatant immunity from prosecution). * The D.C. Circuit’s opinion in Klayman v. Obama, affirming dismissal of an attempt to litigate Section 215 bulk metadata collection (now superseded by the USA Freedom Act) on mootness grounds, and likewise affirming dismissal of a challenge to 702 collection on standing grounds. And then there’s the Super Bowl.  You’ll hear more offense in our breakdown of the game, the halftime show, and the commercials than you saw in the game itself!

Unlike Rent Live, all of our personnel participated in this week’s show!  We’ve got: * The Venezuela Crisis: International Law complications with dueling recognitions * More Venezuela: “5,000 Troops to Colombia” and Section 1021 of the Ronald W. Reagan NDAA FY’05 * How About Some More Venezuela? The national emergency declaration that has been in place since 2015, and sanctions under it * The Prospect of Peace with the Afghan Taliban: Implications for GTMO detention litigation (and looming questions of deference) * From SDF Military Detention to US Criminal Prosecution: Warren Clark is now in Houston, facing charges * More Terrorism Prosecutions: two other IS-related material support cases, plus big sentences in a domestic terrorism case * How About Some More Terrorism Prosecutions: A post-game review of the Nashiri oral argument * Dude, why is our super-secret robot arm in your bag?  On the less-widely heralded Huawei prosecution * More Huawei Prosecutions: Oh yeah, there’s also the one where the CFO is facing extradition from Canada for fraud in re Iran sanctions * Pretty Soon No One Will Fight Alongside Us: On the Danish court ruling in the Green Desert Case * Round 74: Arguing about whether DNI Dan Coats should stay or resign Frivolity:  Super Bowl predictions –> Super Bowl halftime shows –> the “live musical” trend –> why didn’t Rent Live have an understudy??? Spread the word about our show, and be sure to give us a rating on iTunes or whichever podcast platform you prefer!