The National Security Law Podcast

Welcome back to the National Security Law Podcast!  Where else can you get both a preview of a looming surveillance law debate *and* a fine-grained debate about how best for the NFL to address blown calls?  Well, maybe there’s no market for that…but here we are anyway! This week, we open with a review of several interesting developments at the Supreme Court, followed by updates on the issues that two separate military commission defendants (Nashiri and KSM) have placed before the D.C. Circuit Court of Appeals, and then a discussion of three FISA-related authorities that expire this December.  We wrap up with a short note on the legal implications of the apparent Trump Administration decision to recognize an opposition leader in Venezuela as the legitimate head of government there, and then conclude with an extensive debate about blown calls, instant replay, and overtime rules!

This week on the National Security Law Podcast, co-hosts Bobby Chesney and Steve Vladeck are joined by Michel Paradis (lead counsel for the defense in the al-Nashiri military commission case) and Captain Brian Mizer (learned counsel for the defense in that case).  Tune in for an extensive discussion of the upcoming D.C. Circuit Court of Appeals argument (Jan. 22) in the al-Nashiri case, as well as for broader discussion of the state of the military commission system.  As an added bonus after that interview, we also return briefly to the topic of a potential “national emergency” declaration by President Trump, in order to go into the details as just what can and cannot be done with money subject to 10 USC 2808 and 33 USC 2293 if and when such a declaration occurs. Of course, the real added bonus comes with the frivolity at the end.  As it turns out, there is more to be said about bagels. And tortillas.  And Nick Foles. Spread the word if you are enjoying the show, and be sure to put in a rating on iTunes or whichever other platform you use.  Thanks!

If your New Year’s Resolution involves finding a podcast exploring the legal aspects of major national security events and institutions, we are here to help!  Start of 2019 the right way with our first episode of the year.  We’ve got: * Syria withdrawal: We explore the separation of powers between Congress and the President in relation to the withdrawal order and, especially, the possibility of keeping a ground force at al Tanif as a way to counterbalance Iran in Syria.  John Bolton says that Article II will do the trick. Will it?  Even if so, beware the serious War Powers Resolution “clock” issue that then emerges! * Syria and detainees: Withdrawal would also have serious implications for Islamic State detainees held by SDF, including–apparently–two US citizens.  Some are calling for those two to be brought into US custody at GTMO.  What are the full array of options for those detainees, and what pros and cons for each? * Syria and the UN Charter: If the US stays in Syria but shifts to a counter-Iran rather than counter-IS mission, the international law issues surrounding our role become dicier. * The resignation of Jim Mattis and the arrival of another acting cabinet secretary * Paying for the Border Wall by declaring a national emergency: We unpack the issues raised by the potential invocation of the National Emergencies Act and then 10 USC 2808, with an emphasis on the critical role that national security fact deference would play in the inevitable litigation challenging the propriety of invoking 2808.  We also explore the looming eminent domain obstacles, and ask the question: If DOD funds *do* get moved around to pay for a wall, what otherwise-funded projects then don’t get built? * The D.C. Circuit slaps back one nationwide injunction concerning the Mattis Rule on transgender servicemembers, but two other such rulings remain in place.  Will SCOTUS grant cert. before judgment? * SCOTUS also has some important political question doctrine cases it is considering hearing. * The military commissions took a fresh hit this week when we learned that the replacement for Judge Spath *also* has been seeking appointment from DOJ as an immigration judge.  The oral argument at the DC Circuit next week is going to be fascinating… * Harold Martin, the former NSA contractor charged with retention of national defense information, lost his bid to get the fruits of various search warrants suppressed, but did prevail in getting his statements to the FBI suppressed (lesson: if you cuff the guy and drop him to the floor at first, and control his movements for several hours while excluding access by his partner, you do run the risk of having the whole thing treated as constructive arrest even if you repeatedly tell him he’s not under arrest). * DOJ NSD takes on Chinese commercial espionage again in two more cases, and gets strong sentences in a pair of Islamic State-related cases. And then we have the frivolity.  Mean Girls.  It’s fetch, we promise.

Deep-dive alert! That’s right, we are closing out 2018 with a deep-dive episode on the State Secrets Privilege. From Totten to Reynolds and on to the present day, you’ll want to tune in for this hour-long exploration of the nature, history, and issues associated with ye ol’ State Secrets Privilege! As for the frivolity?  Let’s just say that if you are not a fan of Chevy Chase, you’ll want to skip the final segment.

Interested in the views of Once and Future Attorney General Bill Barr on questions like the power of the president to initiate a war, remove officials, and other hot separation of powers topics?  We read his oral history so you don’t have to, along with some other writings, and we unpack it all for you here in Episode 103.  For good measure, we’ve also got a close look at the latest GTMO habeas litigant to attempt (vainly, we suspect) to get the attention of SCOTUS, along with notes on recent uses of force in Somalia, DRPK sanctions out of Treasury, and the arrest of the Huawei CFO in Canada (for extradition to face sanctions-avoidance charges in the US). But as usual we saved the best for last: What is your favorite foreign film?  We’ve got about eight of them to discuss, and some common themes emerge.  Be sure to hit us up on Twitter (@nslpodcast) with your own favorites!

It’s the most wonderful time of the year! Or at least it’s the most wonderful time of the week, for we’ve just posted the latest episode of National Security Law Podcast!  Tune in for: * Military Commissions — Things are coming to a head in the al-Nashiri case in connection with a slew of questions arising from the fact that the previously-presiding judge for several years was pursuing appointment as an Immigration Judge. * Iranians Indicted and Sanctioned for Ransomware Attacks — We’ve got coordinated action from the Justice and Treasury Departments, though not custody over the defendants. * Trumplandia — From Flynn’s cooperation to Cohen’s false statements to the Senate Select Committee on Intelligence, it’s been an awfully busy week in Trumplandia.  Meanwhile, the question of whether AG Whitaker is truly the AG has a small chance of coming to SCOTUS much sooner than most expected. * NSD Update — A U.S. Army Sergeant receives a 25-year sentence in a particularly-scary material-support to the Islamic State case.  Whereas run-of-the-mill 2339B cases involving the Islamic State tend to involve people who are trying to go abroad to join IS, this fellow was well-armed and had a stated intent to kill people right there in Hawaii. * The Senate Resolution on Withdrawing US Forces from Hostilities in Yemen — That bill is suddenly moving in the Senate thanks to increasing angst about the weak White House response to the Khashoggi torture-murder, raising the question whether that momentum can actually result in veto-proof legislation emerging in both houses–not to mention whether it would actually compel any particular change to current U.S. military support to the Saudi coalition given the standard executive branch interpretation of “hostilities.” And then the real fun begins: College Football Playoff (and Sugar Bowl) predictions.  We don’t agree on anything, it turns out. This has the happy effect, of course, of ensuring we get at least some predictions right!

And we’re back, full of turkey and much else besides!  We hope you all had a restful and grateful Thanksgiving (or, for our non-American listeners, that you had a wonderful ordinary work week), and are fired up for more national security legal analysis.  Today we’ve got: * The legality of using tear gas at the US-Mexico border * The bizarre “cabinet order” signed by Chief of Staff Kelly purporting to empower DOD to have the troops deployed to the border use lethal force, brief detention, and brief searches in protection of CBP personnel * Russia’s armed attack on Ukrainian naval vessels and subsequent seizure, prosecution, and even public-display of Ukrainian sailors * Hungary’s decision not to extradite a pair of Russian arms dealers to the US (where they would face charges for a plot to ship arms to narcotics cartels), and instead to send them back to Russia * A fascinating recent trend in which the U.S. Solicitor General has shown surprising willingness to seek Supreme Court review of district court decisions before a Circuit Court has weighed in (including in relation to the ban on transgender servicemembers) * An update on three recent convictions in terrorism-related cases * Airstrikes in Yemen, Somalia, Pakistan, and elsewhere: we discuss a recent article by Spencer Ackerman regarding the data on these strikes, and the big picture implications But wait, there’s more.  If you order now, you’ll also receive a wildly-frivolous review of that Christmas classic….Love Actually.  Actually Awesome? Actually Awful? A bit of both?  Sounds rather like this podcast, come to think of it…

It finally happened: a live episode, on the occasion of our 100th episode! Today we recorded at American University Washington College of Law thanks to the good offices of our friend–and co-host this week–Prof. Jen Daskal. It was a great crowd, and full of entirely-typical frivolity in all respects. You know, like Bobby showing up at the wrong American University campus, notwithstanding Steve’s very clear directions.  But, hey, the pizza we ordered for all the attendees also showed up at that other campus, initially, so what can you do… Well, what was on tap for the centennial? It was a busy slate: * Apparently there was an election the other night?  Wow. Well, according to the live studio audience, the D’s took the House.  And so we discussed what this might mean in terms of the inevitable wave of document and witness requests–and, especially, what should we expect when the White House invokes executive privilege or otherwise we see refusals to cooperate.  What leverage does the House really have, in the shadow of declinations and pardons? * We check in with sustaining member Nashiri and the military commissions.  Be sure to listen to the latest twists and turns with the ten-layer dip, and enjoy the awkwardness when Bobby criticizes the CMCR before a live audience that might or might not include some interested parties! * The DNC has sued the Russians for the 2016 hack, but the Russians are now pointing out that pesky Foreign Sovereign Immunities Act.  The doctrinal questions here are quite interesting, tovarisch! * War Powers: We now have access to the DOJ OLC’s 2014 opinion on the domestic source of authority for the Obama Administration to initiate airstrikes against the Islamic State.  Buckle up for some Article II action! * Trumplandia:  Say, who is the attorney general these days anyway? Inquiring minds want to know, and we’ve got the details…including predictions on which litigation (if any) will get the question before the courts before 210 days have gone by (listen to find out why that number matters!). * As for frivolity?  Why, we have audience Q&A! Bottom line: this was a really fun day, as you’ll probably be able to tell!  Looking forward to the next live one…who wants to host???  

This week we’ve got the concluding episode in our trilogy of deep dives exploring the history and evolution of our foreign-intelligence collection legal architecture (see here and here for the two earlier episodes).  Our focus this week? * Section 702, PRISM, and Upstream: What exactly is this, what are the key points of controversy, and how has it been tweaked by statute recently? * Section 215, contact chaining with bulk communications metadata, and the USA Freedom Act: Same questions (what is this, what are the points of controversy, how has it been tweaked?) And in the aftermath of it all, we explore whether we have, from 2013 to today, created a new equilibrium for surveillance law, restoring stability as had occurred previously in 1978.

In today’s episode we take a break from our deep-dive series on the Foreign Intelligence Surveillance Act in order to reengage with the weekly inflow of national security law news.  We had no choice, really, for one our sustaining members–Doe v. Mattis–saw dramatic developments.  So here’s what we’ve got: * Military Detention of a US citizen – Erstwhile military detainee and US citizen John Doe has been named!  Not only that, but he’s been released to Bahrain. And his passport was cancelled.  We’ve got a recap of this remarkable development, and a summary of the larger lessons learned (or not learned) from this near-14 month legal odyssey.  Adios, Doe v. Mattis! * Border deployment – News that President Trump is sending 5200 troops to the border has triggered a wave of references to ye ol’ Posse Comitatus Act, and even speculation about an executive attempt to suspend habeas.  Buckle up for some debunking… * Birthright citizenship – As if the border deployment story is not enough, suddenly we find President Trump also talking about an executive order to revoke or limit birthright citizenship.  Prepare for some more fun-with-debunking, as we take a tour through the Fourteenth Amendment and the Supreme Court’s decisions in Wong Kim Ark and Plyler v. Doe.  * Domestic terrorism – The horrific events of the past week lead us to close with comments about domestic terrorism as a core national security concern. No extended frivolity this week, either.  Instead, we close with a special guest offering wise words and a resounding illustration of leadership.

Aaaaand we’re back!  Yesterday we posted the first in a series of Deep Dive episodes on the Foreign Intelligence Surveillance Act, covering the origins and early-evolution of the Foreign Intelligence Surveillance Act.  Today, we pick up the thread with two critical aspects of the story: * the rise and (seeming) fall of “the wall” between foreign intelligence and law enforcement investigations; and * the rise and fall and transformed-revival of the Terrorist Surveillance Program But wait, there’s more…we figured out early-on in this episode that we will need much more time to cover all that we want to cover.  And so this is not the deepest dive we’ll take on the FISA topic.  Next week, in episode 98, we’ll dive deeper still in order to complete the transition from TSP to 702, and then to discuss an array of other topics including the bulk metadata story and, inevitably, Snowden. Meanwhile, plans for our live 100th episode taping in Washington on Wednesday November 14th (12:15-1:45) at American University’s Washington College of Law are in place!  The event will be in Yuma Hall Room 401, and the whole thing is thanks to our colleague Prof. Jen Daskal.  Thanks Jen.  Please RSVP here if you are planning to attend!   And don’t forget — the deadline to get an NSL Podcast t-shirt is Halloween.  Order here!

Welcome to part 1 of a 2-part deep-dive series concerning FISA!  In this episode, Professors Chesney and Vladeck begin with the history and context leading up to the creation of the Foreign Intelligence Surveillance Act of 1978, and then explain the central features of the statute and some of the key issues that arose during its first two decades.  Part 2 (episode 97), which carries the story forward to the present, will post tomorrow! Oh, hey, while we have your attention: Yes, there was another two-week extension in Doe v. Mattis.

Welcome to the latest episode of the National Security Law Podcast!  We’re back with our usual mix of discussion and debate about the most-interesting legal developments relating to national security over the past week. And while most such episodes survey many issues, this week we are drilling down on two stories: First, we’ve got military commission activity: After a very slow week on this beat, the mil coms are back with a vengeance thanks to the al-Nashiri litigation.  We’ve got an extensive review of the recent rulings from the Court of Military Commission Review, exploring issues about the authority of the trial judge to approve (or not) the dismissal of defense counsel, the abatement of the litigation, whether the right to a “learned counsel” is qualified by a feasibility requirement, and–perhaps most significant of all–did the court get it wrong with respect to the burden of proof and discovery procedures when the possibility of monitoring of attorney-client communications emerged.  All that, plus “Jenga tower” challenges “10-layer dip” as the official symbol of the mil com litigation. Second, we’ve got this bizarre story from Aram Roston at Buzzfeed, reporting that an American private military contractor was hired by the UAE to carry out hits in Yemen. It reads like a law exam issue spotter question, so we treat it like one.  Does the conduct described violate 18 USC 956(a)?  How about 18 USC 2441?  Or 18 USC 959?  Could some of the people involved be recalled to active duty and court martialed (for killing or conspiring to kill civilians who were not DPH’ing at the time), or perhaps subjected to a Quirin-style military commission?  Is there a relevant context of armed conflict?  And did the guy quoted in the article not have a lawyer??? But wait, there’s more.  Much more: we’ve got Tom Clancy-themed frivolity. Which was the best book, when did the series jump the shark, which movies were best, and which actor played Jack Ryan the best?

It’s a late-night, mid-week episode of the National Security Law Podcast! We’ve got: * Senator Kaine’s letter to DOD raising questions about the theory of collective self-defense as applied in the domestic law context, in relation to the AUMF and Article II. * Speaking of the AUMF, it’s the 17th anniversary of the opening of overt US military engagement in Afghanistan. * Doe v. Mattis is over at last!  Just kidding, it’s totally not over.  Instead, today was the 7th consecutive extension of time as the parties continue to try to work out whatever it is they are trying to work out. The beat goes on…. * The possible murder of Jamal Khashoggi inside a Saudi consulate in Turkey continues to spark outrage, and so we explore some of the legal questions including the potential application of the Magnitsky Act and also the odd question of how to think about a lethal use of force inside of a consulate from an UN Charter Article 2(4) perspective. * The remarkable extradition of a Chinese Ministry for State Security case officer, from Belgium to the US, to face charges involving theft of IP from American aviation companies. * The fascinating question of whether 5 USC 3110 (the Anti-Nepotism Act) would apply were President Trump to attempt to make his daughter the new UN Ambassador, and whether application of the statute in that context would raise constitutional problems. * The ECHR decision in Big Brother Watch and Others v. United Kingdom, finding that certain aspects of UK surveillance law violate Article 8 (privacy) of the European Convention on Human Rights. As for the requisite frivolity: we’ve got concert reviews, with Steve weighing in on the Indigo Girls and Bobby reporting back from ACL Fest Weekend One, with both Paul McCartney and Greta Van Fleet on tap.

Spotted: A rare episode of the National Security Law Podcast clocking in at under one hour!  And yet there was much to discuss, including: * T-Shirts!!!! At long last, the much-anticipated NSL Podcast t-shirts are for sale.  All profits go to charity (ALS Texas, to be exact; they support patients and research for victims of ALS).  Start shopping now! * Detainee Stuff: We’ve got an all-too-predictable Doe v. Mattis update, and a set of notes about the denial of cert. for GTMO detainee Saifullah Paracha (who made an ill-fated bid to challenge GTMO transfer restrictions as bills of attainder).  Perhaps most interesting: the reminder that Justice Gorsuch will recuse on GTMO matters that in some sufficient fashion touched upon his service in DOJ circa 2004-05. * Courts & Accountability Stuff: The cert. petition in Hernandez II survived the First Monday in October, with the Court calling for the views of the Solicitor General. * Mil Coms Stuff: The CMCR has emerged with an opinion!  But, no, it’s not about the abatement issue, at least not in a helpful way. It’s a ruling about the issues raised by former Judge Spath’s new gig as an Immigration Judge. Tune in to hear the sound of Steve’s head exploding… * Use of Force Stuff:  We’ve got some recommended reading for you: the International Law Association’s long-awaited “Report on the Use of Force.”  This document is a handy primer on the jus ad bellum/UN Charter rules relating to force, armed attack, and aggression.  We give a brief TLDR, and then use that as a springboard to discuss… * Staying in Syria to Boot Out…Iran?  News that the US military might be tasked with staying in Syria in a post-Islamic State mode (in order to counterbalance or even drive out the Iranian military presence) raises some hard questions both as a matter of the UN Charter and domestic separation of powers law.  Your hosts can’t manage to generate much debate over this one; without further facts, it’s hard to see how such a mission could be squared with either set of rules. * Trumplandia: Both the Rosenstein Watch and the Sessions Watch are at threat condition: yellows.  Don’t expect much drama there until after the election, we think. But nevermind all that, for we have grade-A frivolity this week:  What exactly qualifies a movie to be a “Buddy Movie,” and what are the classics of the genre?