The National Security Law Podcast

And we’re back!  Tonight’s episode features: * SCOTUS preview: though many have missed it, SCOTUS is in fact back in session very soon, and we have a preview of security-related petitions and some early grants as well. * Trumplandia: Well, Rod Rosenstein sure was the subject of loads of speculation this week, and it soon became quite clear that it is time for…a refresher regarding the TWO DISTINCT chains of succession (and related issues) for his TWO DISTINCT functions (Deputy AG and, quite separately, Acting AG in relation to the Russia investigation). * The Cybers: Not one but two “cyber strategies” dropped last week.  The National Cyber Strategy sure looks like John Bolton did not write all of it, and the DOD Cyber Strategy has some very interesting language relating to something called…”defense forward”? * Mil Coms: What’s this about conducting hearings stateside??? * DOJ National Security Division updates: a chlorine gas bomb, a NSA security breach, and an unregistered agent of Beijing. But we know you stuck around for the frivolity, and we’ve got a double-dose this week: MLB playoff predictions, and–thanks to our friends at The Intrepid Podcast–a debate about what makes something a pirate movie.  We don’t think that word means what they think it means!

There’s no shortage of news this week, but comparatively little of it is national security law news, and so we are back with a fresh deep dive episode.  For better or worse, it’s our longest episode yet (topping out a bit over 1:20). So find a comfy spot, pop in the headphones, and prepare to dive deep, deep, deep into the history of military commissions in the United States!  Get ready for Ex Parte Milligan, Ex Parte Quirin, and Hamdan v. Rumsfeld, and much more besides!

Well, would you look at that: your hosts are back in town at the same time at last, and they’ve got a fresh episode covering some of the major national security legal developments of the past couple of weeks!  We’ve got: * A Doe v. Mattis update, naturally * A new judge for the 9/11 prosecution, for now (but not a year from now, incredibly enough) * New CMCR judges * Nothing at all happening with al Nashiri * Anonymous administration resisters * Questions (and a cert. petition!) about the constitutionality of recalling retired officers to service in order to subject them to court martial, and some more SCOTUS petitions while we are at it * The Kavanaugh confirmation hearings (inevitably!) * John Bolton vs. the ICC All that, plus some pigskin frivolity (including some pretty wildly-optimistic prognostications).

And we are back…with a second-consecutive deep-dive episode.  This week, Professors Chesney and Vladeck explore the iconic 1952 decision of the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, better known as the “Steel Seizure Case.”  It’s an all-time classic regarding the separation of powers in general and war-related powers in particular (not to mention constitutional interpretive method, theories of emergency power, and more).  In this deep dive, we: * place the ruling in factual and historical context * trace the doctrinal threads across the many separate opinions (and, yes, we’ll use the phrase “tripartite framework”…talk about an old chestnut!) * explore what the Court did and did not actually settle, and what sort of shadow the case has cast over time * identify the impact of key subsequent rulings (including Dames & Moore v. Regan and Hamdan v. Rumsfeld). Like last week, bear in mind that this episode was pre-recorded in August (in this case, on Thursday August 23).  We’ll be back with regular “current” shows the week after Labor Day!

We are back this week with a new “deep dive” episode, this time focused on the issues raised by the U.S. government’s use of lethal force against Anwar al-Awlaki–a U.S. citizen who became a key figure associated with al Qaeda in the Arabian Peninsula.  Tune in for a detailed backgrounder covering: * the unsuccessful attempt by al-Awlaki’s father to obtain ex ante injunctive relief in federal court (and the standing, political question doctrine, and state-secrets privilege issues that suit raised) * the unsuccessful attempt by his father to obtain Bivens damages after a drone strike killed al-Awlaki * the “white paper” the Justice Department produced to give a sense of its position on the merits as to when it is constitutional and otherwise lawful to use lethal force against a citizen in this context, and the Second Circuit’s determination that the government had largely waived privilege as to the OLC memorandum underlying that white paper (and the disincentive this created for further white papers, speeches, and the like regarding internal legal advice/positions) * the merits of the arguments as set forth in that white paper (Fourth Amendment seizures and Fifth Amendment Due Process, criminal laws prohibiting overseas killing of citizens, and the Executive Order prohibiting “assassination”) In short, this episode covers a wide-array of topics.  One could teach a whole course in national security law based in no small part on just these topics. Note: there will be no separate episode this week or next regarding events since the morning of Tuesday August 21st (aka, pre-Cohen plea).  Steve is traveling, so he and Bobby pre-recorded this deep dive episode as well as next week’s (episode 89) in advance.  We’ll be back with a “regular” episode (episode 90) on or about Thursday September 6.  One can only imagine what will have transpired by then; both your co-hosts will be commenting via Twitter all the while, of course, so be sure to follow them at @steve_vladeck and @bobbychesney.  

And we’re back, with much to discuss in the wacky world of national security law.  Join Professors Steve Vladeck and Bobby Chesney as they wrestle with: * A *huge* ruling by Judge Pohl in the Military Commission 9/11 prosecution, barring the government from using at trial statements made by the defendants at GTMO to FBI “clean team” interrogators (in what amounts to a CIPA-style sanction in response to government restrictions on defense access to CIA personnel) * The government in the Tanvir case (alleging that the plaintiffs were put on the no-fly list by the FBI as punishment for refusing to become informants) has decided to go for en banc review on the RFRA damages question * Criminalizing the provision of information about explosives with intent that it be used for a “federal crime of violence”–United States v. Marlonn Hicks as a case study both in First Amendment and vagueness concerns * Notes on other recent DOJ national security cases (Iranian spies and an IS fighter who made it to the US) * President Trump, Signing Statements, and the NDAA: How does Trump compare to his recent predecessors? * John Brennan and Security Clearance Revocations:  Are their constitutional limits that can be litigated? And for your weekly frivolity? Tips for all the 1Ls starting at law schools this fall!

We are back with review and analysis of the latest national security law developments, hot on the heels of last week’s deep-dive episode.  We’ll have another deep dive soon, but for now it’s back to some old chestnuts. We’ve got: * Doe v. Mattis — another delay to report, and some further speculation about the role that passports might be playing in the negotiation. * al-Alwi — last week we shared a few preliminary reactions to the D.C. Circuit’s al Alwi decision, and now we’re back with an in-depth analysis. * A circuit-split on a Bivens remedy in cases involving a cross-border shooting: we’ve got an explainer on the relationship between the Rodriguez decision in the Ninth Circuit and Hernandez II. * PCLOB lives???  A few quick notes on the latest nominations to the PCLOB.  If only the Senate would actually confirm some of these folks, this valuable institution would no longer be–wait for it!–inquorate. * A note on the military commissions: not much cooking here because the Nashiri litigation is held up at the Court of Military Commission Review, but we do at least have a new judge in the case. * Trumplandia: We mostly resist the temptation to wallow in the Omaraso debacle, and actually keep this segment of the show short for once.  Mostly we chat about the fact that four federal judges (now including a Trump appointee) have all rejected claims that Special Counsel Mueller’s appointment is unconstitutional. * Notes on the National Security Division: We check in with NSD, finding a handful of pleas, sentences, and other developments in national security cases (including the apprehension by the Cubans of an American trying to fly to Russia in the 12th year of his abscondment from alleged acts of terrorism for the Earth Liberation Front…definitely sounds like the plot of a TV show). And then we just start indulging ourselves with what must be twenty or more minutes of rambling frivolity, starting with some TV and movie reviews and spreading out to cover some books and…NBA projections?  Remember: experts on national security law, but nothing else!

It had to happen sooner or later: an actual slow week for national security law!  Ugh!  Well, time to make lemonade from the lemons.  A slow week in NSL news means that we can take a run at a format that we originally expected to be a mainstay for the show: a deep-dive into a single significant development. In this case, we’re going back to June 28, 2004, and the Supreme Court’s decision in Hamdi v. Rumsfeld.  It was a titanic ruling relating to military detention authority, the AUMF, citizenship, due process, and more.  In some respects, it was a huge win for the government.  In others, it was a huge defeat.  We unpack it all, along with a great deal of historical context, over the course of the hour. And for dessert?  Frivolity circa 2004, of course!  Buckle up for a stroll down memory lane with the top movies, tv shows, books, and songs of 2004.

We are very excited to have a special guest this week: the one and only Amy Jeffress!   Join us as Amy, Steve, and Bobby discuss: * The cyber provisions in the just-passed NDAA * Doe v. Mattis (of course!) * The Mueller investigation * Rudy and the conspiracy/collusion comment * Legislating to speak out against NATO withdrawal? * FARA practice * 3-D guns, the Arms Export Control Act, ITAR, and USML (no, that’s not a soccer league) Also, an extensive discussion of where Amy should have dinner while in Austin!  Gotta go now, that conversation made us all very hungry.

Welcome to the latest National Security Law Podcast episode.  Though Steve and Bobby both have been moonlighting (here is Steve on the Lawfare Podcast and here’s Bobby on the Cyber Law Podcast), there’s no place like home, and both are back in the studio this morning to recount and debate the latest national security legal developments.  This week we’ve got: * The Carter Page FISA Order application: How are these things supposed to work, how does it compare to criminal investigation warrants, what role may hearsay normally play, what are the Woods Procedures and what is all this talk about “verification,” and what should one make of it all? * Russia, Ambassador McFaul, extradition, and MLATs: President Trump’s flirtation with the Russian proposal for US assistance interrogating our own former ambassador to Russia set off shockwaves.  In the background are questions about constitutional protection against involuntary extradition, as well as the rules for questioning witnesses under color of a Mutual Legal Assistance Treaty.  We foreshadow a potential litigation dispute should Russia actually invoke the MLAT in this setting and then the Trump Administration fails to invoke the “essential interests” exception to it. * Revoking clearances to punish (and chill) dissent: In a strong bid for authoritarian impulse of the week, the White House is exploring punitive revocation of clearances held by an array of prominent former national security officials who have been vocal in criticizing the president.  Relying on this terrific primer from Brad Moss at Lawfare, we review the legal framework. * Non-US detainees held by SDF in Syria & potential US prosecution of 2 ex-British IS members: We again note that about a 1000 IS fighters are held in SDF custody in northern Syria, including many European citizens.  There’s no chance they’ll stay there forever, so disposition questions abound.  A pair of them who had their British citizenship stripped and who are linked to several especially-heinous crimes may well end up in the US for prosecution.  But will that be a civilian court or a military commission? And will the British be able to pass relevant information to us for this purpose if the death penalty is on the table? * Doe v. Mattis draws closer to an end: ACLU and DOJ jointly notified Judge Chutkan that they are working on a negotiated settlement and will report further by July 30 (in time for the next episode, we hope!). If they do a deal, it likely will involve either release into Syria as DOD has requested (but this time with travel documents, perhaps?), or maybe even release to Saudi Arabia or some third country after all. * Almost another Doe v. Mattis: Turns out Doe wasn’t the only American caught by SDF fleeing IS territory.  Last month they captured Ibraheem Musaibli, from Michigan.  But instead of transferring him to US military custody in theater, he’s been shipped to the US for civilian prosecution. At the same time, so too has been Samantha Elhassani of Indiana, who had gone to Syria with her kids and her IS fighter husband, and now faces a lying-to-FBI charge. Oh, you came here for the frivolity?  We have a segment that is as solid as a rock.  Solid as The Rock, in fact.  

Another busy week for the National Security Law Podcast!  Buckle up for: * “The Press Conference” and its aftermath – Your co-hosts agree that it was a fiasco, but they disagree sharply on whether administration officials should resign because of it.  Tune in for an extended discussion of the situation involving Director of National Intelligence Dan Coats, in particular. * Russia indictments before and after – Famously, just prior to Helsinki, the Special Counsel dropped a bombshell indictment against a group of Russian military intelligence officers for election interference-related charges. Then, the day after The Press Conference, DOJ’s National Security Division went public with a distinct case involving a Russian citizen charged with conspiracy to act as a Russian agent in the United States without registering with DOJ (and in that case, the defendant actually is in US custody). * Doe v. Mattis – Judge Chutkan heard argument last week regarding whether to bar the government from releasing Doe into Syria.  The ruling will drop later this week most likely, but why wait? Your hosts speculate on the likely outcome, dwelling on the role of “national security fact deference” and, especially, whether the government can be forced to give Doe a passport or other identity documents. * Judge Kavanaugh – If confirmed, would Judge Kavanaugh mark a significant departure from Justice Kennedy on national security matters?  Your hosts find a bit of common ground here, but plenty on which they disagree. * Military Commissions – There’s a new issues, involving the Lucia decision, which may have a big impact in Nashiri (and other cases).  Is the Convening Authority properly appointed? * NDAA note: The Conference Committee is finishing its work on the new NDAA, so we’ll delay our coverage of its cyber (and other) provisions until the final text is public. * GTMO and Periodic Review Boards – An oral argument in the CCR’s renewed-habeas case for a large group of detainees at GTMO took place before Judge Hogan last week, renewing attention to the question of whether a person ever can be released once initially determined eligible for detention there.  The Periodic Review Board process has long been the answer to that question, but with uncertainty regarding the willingness of the Trump Administration to actually act upon PRB determinations, the possibility of legislation to stabilize and perhaps empower the PRB system is beginning to get attention. As for frivolity…Die Hard appears here and there on the show, but the main segment at the end is more of an “extra” than a “frivolity.” Steve has a discussion of the new supplement for his co-authored casebook (click here for the front matter). And on Thursday this week, Bobby will be in DC, at the Heritage Foundation, for an event drawing attention to the policy, legal, and technical challenges associated with Deep Fakes.  His brand-new paper with co-author Danielle Citron (Maryland) has just gone live on SSRN, here.  The event at Heritage, which features a keynote from Senator Marco Rubio, will be livestreamed (12:30 to 1:30 eastern, this Thursday).  More here.

We’re back after a one-week layoff!  No SCOTUS announcement yet, alas, but we do have this to offer: * Doe v. Mattis and the upcoming hearing on the government’s plan to release Doe in Syria * The military commissions and the retirement of Judge Spath * Over in the civilian court system, Uzair Paracha, convicted back in 2005, just won a motion for a new trial based on newly-discovered evidence (involving CSRT and other statements from GTMO detainees) * A roundup of other recent DOJ prosecution developments (including the extradition of El Chapo’s successor) * A deep dive into a set of tort suits involving overseas military activities and the role of civilian contractors, with an emphasis on the role the political question doctrine has played in defeating such cases * A SCOTUS nomination preview * Kudos to the Senate Select Committee on Intelligence (SSCI) for its strong report documenting massive Russian intervention in the 2016 election And, as always, some pure frivolity (including an analysis of the Kawhi Leonard debacle in San Antonio and notes on our favorite things about the World Cup).

Hot on the heels of the Kennedy retirement announcement, we’ve got our special Supreme Court finale episode!  This is the show for you if you would enjoy detailed and amicable debate and discussion concerning: * the consequences of Kennedy’s retirement for national security and other issues; * what the ideological range might be for the next nominee; * the Carpenter decision, its nuances, and its implications for foreign intelligence investigations; and * the Travel Ban decision, the nature and justifications for “national security deference” in that case, how Kennedy may have pulled Roberts into hot water, and especially the Roberts-Sotomayor dispute over the relevance of Korematsu. Or, you could skip to the end for a review of Solo: A Star Wars Story.  

Before getting into the run of this week’s show: Congratulations to Steve and Karen on the birth of their daughter!!! Meanwhile, in the wild wacky world of national security law, what a week it was.  We’ve got: * Zaidan v. Trump – a remarkable district court refusing to dismiss the constitutional claims brought by a US citizen who alleges that he has been placed, erroneously, on the “kill list” based on alleged ties to al Qaeda in Syria * Possible expansion of the list of AUMF-covered associated forces to include al Qaeda in the Islamic Maghreb * Further delays in Doe v. Mattis, with the hearing on the permissibility of release in Syria now set for July 13 and the hearing on the merits still out there in limbo. * Rejection of the Lee Amendment (on detainability of US citizens and lawfully-present persons) to the NDAA FY19 * Denial of en banc review in Hamidullin * Periodic reminder that the problem of IS detainees held by the SDF in Syria still is not resolved * Baker v. Spath – another remarkable district court ruling, this time finding that the chief defense counsel at GTMO is within the personal jurisdiction of the military commission there, but also concluding that Judge Spath cannot impose a contempt punishment without the involvement of the commission panel. * Judge Pohl’s scheduling order for the 9/11 military commission trial books up all of 2019 for pre-trial proceedings, meaning that the actual trial is not happening prior to 2020. * The “power to wage war means the power to wage war successfully,” yes, but for goodness sakes don’t cite Hirabayashi for that much-quoted language! * Convicted Benghazi conspirator abu Khatallah loses on his bid for a mistrial * A quick run-down of other DOJ national security developments this week includes new charges against a man allegedly responsible for leaking the CIA “Vault 7” materials to Wikileaks and also a Wisconsin woman who allegedly hacked the social media accounts of others in order to promote the Islamic State (including sharing Ricin production instructions). * The Third Circuit issues an important Suspension Clause ruling in Ocasio-Martinez * Judge Brinkema rejects a bid by CACI to escape an ATS claim based on a proposed extension of Jesner * SCOTUS still hasn’t decided Carpenter, Dalmazzi, or the Travel Ban cases! * Notes on new developments in City of Chicago (nationwide injunctions) and Hernandez II (cross-border shooting) * Trumplandia:  we punt till next week on the OIG Report and … Space Force! Whew.  Time for someone to go change some diapers!

Ok, Steve and Bobby are not actually in Singapore (we sent Dennis Rodman instead). As usual, they’re up on the 6th floor at Texas Law, bringing you the following this week: * Doe v. Mattis – Because we can’t go a week without some fascinating development in this case.  This time, it was the surprise announcement last Wednesday that DOD wants to go ahead and release him after all, but to do so in a way that would drop him off in SDF-controlled territory in Syria.  Doe is resisting, and now the long-awaited hearing on the legal merits–scheduled to occur on June 20th–has been replaced by a hearing on this release question.  And what will (or at least should) be argued then?  Steve and Bobby explore two distinct questions:  First, does some version of the Valentine rule forbid involuntary cross-border transfers that are not custodial on the back end (and even if so, should that be the rule with respect to releasing captives from a war zone)?  Second, is there a rule requiring that the release meet some threshold of safety and, if so, is that rule satisfied here? * Boumediene’s 10th anniversary:  A decade ago, the Supreme Court decided Boumediene v. Bush.  Viewed as a landmark at the time, what has its legacy turned out to be? * SCOTUS watch: Still no Carpenter, Dalmazzi, or travel-ban decisions. * The investigation and arrest of James Wolfe: the former head of security for the Senate Select Committee on Intelligence is under arrest for lying to the FBI about his relationship with reporters, with a real threat of further charges for mishandling classified information.  The underlying investigation, meanwhile, included acquisition of a reporter’s communications metadata.  All of which provides an excellent occasion to review and discuss DOJ’s guidelines governing such journalist-related investigations. * Trumplandia Road Show: We could hardly ignore this, could we?  The Trump-KJU summit produced some significant American concessions regarding security guarantees for the DPRK and a promise to end US-South Korea joint military exercises. But it did not (yet) produce a reduction of sanctions.  We explore the authority of the president to do these things, emphasizing the limits on his control over sanctions in this particular setting. All that pushed us well past the 1-hour mark, so after promising some frivolity involving Steve’s favorite SCOTUS decision of all time, we end up pushing that topic off till next time.  Till then…