The National Security Law Podcast
Bobby Chesney and Steve Vladeck
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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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1 day ago
Episode 223: The Search for Episode 222!
Well, the original idea was to have a short episode about the strike that killed al Zawahiri, and to recap the D.C. Circuit's Larabee ruling. But then just before showtime, we learned of the FBI executing a warrant at Mar-a-Lago, not to mention an avalanche of awfully-inflammatory commentary about the significance of this event. Between that and the Mets on a hot streak, we ended up with a lot to discuss! Tune in for all the classic hits, such as: What is the legal significance of a formal surrender agreement in relation to the domestic law effect of a Declaration of War?
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Jun 27, 2022
Episode 221: GWOT Shots, Part Deux
And we're back, with yet another interminable window of extemporaneous frivolity at the front end of what otherwise is a somewhat serious show about the latest national security law developments and debates (seriously). Listen up as co-hosts Steve Vladeck and Bobby Chesney discuss Russia's denial of combatant immunity to foreign fighters in Ukraine (including some Americans), how this pertains to mercenary status, how it compares to US policies on al Qaeda and Taliban fighters, how this in turn relates to the Abd al-Hadi al-Iraqi plea deal at GTMO, how speaking of GTMO they transferred Gul to Afghanistan, and hey speaking of the Global War on Terrorism (GWOT) there was a capture operation in Syria that seems like it was led by US SOF but who knows who now holds the detainee let alone what legal framework applies and hey maybe it was France because it seems like they've got their own Le GWOT going in the Sahel to include drone strikes taking out several dozen guys on motorcycles plus they also had a capture operation, and [...catching my breath...] meanwhile Steve lost a case about court-appointed prosecutors but maybe that's not the last word because that dissent made some good points. [EXHALE]
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Jun 7, 2022
Episode 220: This Podcast Made the Kessel Run In Less than 12 Parsecs
And...we're back, and in less than a month, remarkably! Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss (1) the latest seditious conspiracy indictment arising out of January 6th, (2) the Navarro contempt of Congress charge, (3) the latest developments in the lawsuits challenging the Texas and Florida social media content-moderation laws, and (4) enforcement of Commerce Department licensing rules designed to prevent certain US-made aircraft from being taken to Russia (or Belarus) and the way this resulted in what ultimately will be a $400m loss for Roman Abramovich. That, plus more aimless Mets and Star Wars chit-chat than any reasonable person possible could want....
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May 17, 2022
Episode 219: And the Podcast Host-Designate Is …
Some of y'all were wondering if the show was done-for now that co-host Bobby Chesney has been named the next dean of the University of Texas School of Law. But as it turns out, the main impact of that on the show probably will be no more and no less than to take the level of preparation that he and co-host Steve Vladeck put into things to new lows!
All of which is a long-winded way of saying: we're back with a fresh episode, this time focused on (1) discussion of the leak(s) associated with the Supreme Court's Dobbs case and (2) a review of what a war-crimes analysis might entail as applied to operation Russia's GRU conducted to shut down Ukraine's grid during the period after the occupation of Crimea but before the outbreak of the current invasion!
Ok, there's also a preposterously detailed discussion (in the form of a song-to-song competition) of the relative merits of various Indigo Girls albums. Seriously? Seriously.
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Apr 27, 2022
Episode 218: From 28(j) to Enterprise-J
Ok, ok, it's been a full month since the last episode. But good things come to those who wait! We are back, and hope you'll tune in as co-hosts Bobby Chesney and Steve Vladeck discuss the latest in national security legal news, including:
The questions associated with neutrality and co-belligerency (and especially "qualified neutrality") in relation to US and allied support to Ukraine in the Ukraine-Russia War
The Supreme Court's decision to grant a stay in Lloyd Austin v. U.S. Navy SEALS 1-26, in relation to a district court order (based on the Religious Freedom Restoration Act) barring the Navy from enforcing its policy precluding deployment of personnel who refuse COVID vaccination)
Another GTMO detainee (Hassan bin Attash of Yemen) cleared for release
A guilty verdict against an Islamic State member (a formerly-British citizen who was part of the quartet known as "the Beatles") charged with involvement in the horrific abuse of captives
And, yes, lots and lots of crowing over the early-season success of the Mets, along with other frivolity!
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Mar 28, 2022
Episode 217: Talking With Matt Olsen About DOJ National Security Division
What a treat we have for you this week! Assistant Attorney General Matt Olsen, head of DOJ's National Security Division, sits down with co-hosts Bobby Chesney and Steve Vladeck to talk about a wide range of NSD-related topics:
the origins of NSD
the Section 702 sunset next year
indictments against Russian hackers
sanctions enforcement
focusing on China's commercial espionage and transnational repression
the continuing international terrorism threat
the growing domestic terrorism threat
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Mar 7, 2022
Episode 216: This Podcast Does Not Constitute Legal Advice
And we're back! Tune in as Professors Bobby Chesney and Steve Vladeck discuss and debate:
ICC jurisdiction over war crimes on Ukraine's territory
Limits on sharing tactical intel and arms?
The Neutrality Act and its implications for those interested in going to Ukraine to fight
The Supreme Court's twin State Secrets Privilege rulings last week (Zubayda, Fazaga)
Qhatani transferred out of GTMO
A pair of recent rulings against the Navy on its COVID vaccination policy
The House Foreign Affairs Committee's AUMF hearing
All that, plus. what can only be described as perfunctory frivolity :)
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Feb 22, 2022
Episode 215: Rhyming or Outright Repeating?
We are back with a fresh episode, hot on the heels of Russia's latest incursion into Ukraine. Tune in as we survey some of the legal dimensions to this latest development (including discussion of the impact of diplomatic recognition on UN Charter Article 2(4)), as well as the various sanctions frameworks that are now in play. We also check in on an important district court ruling in the civil suit against former President Trump in relation to the January 6 insurrection, exploring its First Amendment/Brandenburg doctrine aspects. As for frivolity? A bit random this time, even for these guys: we've got the Juwan Howard situation following the Michigan-Wisconsin game, and reviews of some of the key rides at Disneyland. Because...well, it's the frivolity segment, after all!
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Feb 1, 2022
Episode 214: What Month Is This Anyway?
We are back, and even though one of us apparently cannot work this new tech called a "calendar," we're excited to bring a shorter-than-usual episode without having a whole month go by!
Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
The Biden Administration's change of position on the availability of coerced statements for use in pre-trial proceedings in military commissions
The news of the capture, repatriation to the United States, and federal court prosecution of a woman from Kansas who apparently had traveled to Syria to take up arms on behalf of ISIS--and the questions this raises about how long she was held pre-transfer, and in whose custody
Civil suits against private military contractors, the varied legal obstacles they face, and updates on some current lawsuits in which Steve is involved--and interesting questions they raise, such as the precise scope of the "combat activities" limitation
All that, plus a grab-bag of frivolity including the new Netflix movie based on Robert Harris's Munich book, and of course NFL sportsball happenings!
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Jan 19, 2022
Episode 213: Most Likely to Engage in a Seditious Conspiracy
Seeing as how 2022 is well underway, it's probably about time we produced a new episode! Tune in for co-hosts Steve Vladeck and Bobby Chesney as they discuss and debate:
The various international and domestic law questions that might arise in that Russia (further) invades Ukraine
The oral argument in Thompson v. Trump (especially the presidential immunity question)
The who-owns-the-privilege question in Trump v. Thompson (not a typo)
The seditious conspiracy indictment against Oath Keepers leaders
What federal statutes have to say about a scenario in which the President might confer authority on a private armed group to "enforce" the law
Believe it or not, a judicial change in a military commission
More GTMO detainees approved (by Periodic Review Board) for transfer out (though no one actually seems to be leaving)
All that plus the usual frivolity, this time featuring the classic combination of (1) Jim Carrey films and (2) NFL playoffs.
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Dec 17, 2021
Episode 212: Nakatomi Plaza Holiday Office Party Edition
Welcome to our official Holiday Office Party, where we mainly just hope things will go smoother than they did for the good people of Nakatomi Corporation in 1988!
In this episode, co-hosts Steve Vladeck and Bobby Chesney discuss:
The state of the criminal contempt of Congress proceedings against Steve Bannon and Mark Meadows
The D.C. Circuit's ruling refusing to assert post-presidential decision-making authority to Donald Trump in relation to the records of his presidency held by NARA
The SCOTUS cert. grant in Torres (does Congress under its power to raise and support the armed forces have authority to abrogate state sovereign immunity)
The SCOTUS cert. denial in Begani
The 10th Circuit's ruling in Muhtorov (upholding the Section 702 FISA framework against various challenges)
Passage of the NDAA for Fiscal Year '22
All that, plus book recommendations for your holiday shopping convenience, and a Q&A regarding the works of the great Mo Willems (you know: Pigeon, Elephant and Piggie, and Knuffle Bunny).
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Nov 8, 2021
Episode 211: Behold, our Q4 episode
Ah, well, that took a bit longer than expected! We promise we don't mean to let this become a quarterly show, or even a monthly. Too much national security law for that!
In today's episode, we discuss:
Haroon Gul's victory in a GTMO habeas case (and what it may or may not mean for the bigger picture)
Majid Kahn's sentencing testimony (and the clemency letter that the majority of the panel subsequently issued)
The SCOTUS decision to deny cert. in ACLU's attempt to establish a constitutional right of public access to at least some FISC opinions (and the Gorsuch-Sotomayor dissent)
The SCOTUS oral argument in Fagaza, raising both statutory interpretation questions about FISA (and, possibly, constitutional questions about the State Secrets Privilege)
Today's DOJ announcement about Poland's arrest (and America's extradition request concerning) a Ukrainian national associated with the REvil ransomware Kaseya campaign
The conviction (for economic espionage) of a Chinese MS…
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Oct 5, 2021
Episode 210: The Witness Who Became a Meme
What's that? A new episode? What have these guys been doing all month...
Well, whatever they've been doing all September since Episode 209, Professors Vladeck and Chesney are back at last with a new episode. Tune in as they discuss and debate:
The en banc D.C. Circuit oral argument in al Hela (asking, inter alia, whether the Due Process Clause applies at GTMO)
A preview of the upcoming SCOTUS arguments relating to the State Secrets Privilege
The Dorfman/Naylor/Isikoff article on CIA planning relating to Assange and Wikileaks
A National Security Division roundup noting the sudden wind-up of the Huawei CFO case and the new material support case against a Canadian Islamic State fighter previously held by the SDF in Syria
All that, plus no small amount of frivolity (including a much-too-long endorsement of the greatness that is Joe Abercrombie).
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Sep 10, 2021
Episode 209: The 20th Anniversary of 9/11
This week on the National Security Law Podcast, we mark 20 years since the 9/11 attacks. Tune in as co-hosts Steve Vladeck and Bobby Chesney share their views on the major legal developments unleashed by that awful day, in a broad retrospective on the era.
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Aug 16, 2021
Episode 208: Afghanistan
In this week's episode, we focus on the unfolding situation in Afghanistan.
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Aug 11, 2021
Episode 207: Pearls Are In the Eye of the Beholder
It's been a long summer break for the podcast, but we're back! Tune in today as Professors Chesney and Vladeck discuss and debate:
AUMF reform prospects (2001 AUMF in particular)
Ongoing uncertainty as to the fate of the Presidential Policy Guidance re use of lethal force outside areas of active hostilities
Litigation exploring whether a unanimous panel should be required in courts-martial
A semi-deep dive into Jacobson, the 1905 Supreme Court case that upheld a local mandatory vaccination order (targeting smallpox) in the face of what we would today describe as a substantive due process fundamental rights/liberty claim.
How about that CDC rent-moratorium extension?
And, yes, we lament the apparent collapse of the Mets, while also recommending some good books and podcasts!
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Jul 12, 2021
Episode 206: This Podcast Is Not a State Actor
[Updated to fix the audio issue with the original file...though I have to admit, it was very entertaining to hear the hosts speaking an octave too low!) We're back with another round of discussion and debate featuring co-hosts Steve Vladeck and Bobby Chesney, working through the latest national security law developments. Tune in for:
The end of the decade-long run of General Mark Martins as Chief Prosecutor at GTMO
The interagency debate within the Biden Administration regarding whether to concede that the Due Process Clause applies to GTMO detainees (either in the habeas context or more broadly), in connection with the al-Hela litigation currently pending before the en banc D.C. Circuit
Interstate deployments (without federalization) of state national guard forces, and the state-level separation-of-powers issues arguably raised by private funding of NG activities
OLC's opinion on the removal power
New life for the US effort to extradite Julian Assange from the UK
Do…
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Jun 28, 2021
Episode 205: Road Trip!
We're back, with one slightly-older co-host and another co-host who is ready to drive across the country! Tune in for discussion and debate relating to:
The domestic and international law aspects of the Biden administration's decision to conduct airstrikes against Kata'ib Hezbollah targets in Syria and Iraq
The ongoing Biden administration internal debate over which rules should govern the use of lethal force in locations other than Syria and Iraq
The Supreme Court's denial of cert. concerning warrantless searches of electronic devices at the border (leaving in place a significant circuit split, oddly)
The Supreme Court's denial of cert. in a case involving torture claims against a contractor associated with the Abu Ghraib prison
The Court of Appeals for the Armed Forces ruling in Begani concerning court-martial jurisdiction over former servicemembers
Sentencing for a US translator who became a spy for Hezbollah, providing classified information including the ident…
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Jun 14, 2021
Episode 204: [Insert Inscrutable Title Here]
Hello from Austin!
We're back with a new episode! Tune in as your co-hosts Professor Steve Vladeck and Bobby Chesney discuss and debate:
SCOTUS narrows the scope of the Computer Fraud and Abuse Act in Van Buren
SCOTUS grants cert. in Fazaga, adding to the sense that the October '21 Term will be unprecedented for its engagement with state secrets privilege and FISA issues
The Biden Administration withdraws IEEPA sanctions against TikTok and WeChat...for now, at least!
GTMO closure trial-balloon? About that NBC News story that mentions a possible desire to put the long-term military detainees in a Supermax prison rather than a military facility
Over-the-horizon uses of force in Afghanistan post-withdrawal: so, will that be subject to the PPG as a use of force outside a zone of active hostilities?
Leak-hunt subpoenas: we've got subpoenas concerning the communications of journalists...and Members of Congress...and the White House Counsel. Where are the legal and polic…
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May 24, 2021
Episode 203: Resistance Is Feudal (aka an interview with CISA’s Eric Goldstein)
We are very excited for this week's show, in which we interview Eric Goldstein--the Executive Assistant Director for Cybersecurity at DHS CISA! We had a terrific conversation, with a focus on (1) understanding the specific programs and activities that CISA engages in to improve cybersecurity, (2) the highlights from President Biden's cybersecurity executive order, and (3) career pathway insights.
We did not neglect the frivolity either--we've got NBA playoff predictions (including that rarest of all NBA discussions: how things are looking for the Knicks and Wizards in the context of the playoffs).
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May 20, 2021
Episode 202: Back in Steve’s Office
Recording episode 202 was something of a milestone for us, because we met in Steve's office for an in-person recording for the first time since Before. Wow! We're grateful to be back in the "studio," and we found it was a much-more fun experience for us. See if you can detect the difference as we talk about
A GTMO military commission ruling construing the Military Commissions Act prohibition on the admissibility of information derived from torture or cruel, inhuman, or degrading treatment to apply only as to offers of evidence in the trial setting, not to pre-trial motion practice (at least where the statement in question is not offered for the truth of the matter asserted).
The judicial carousel at the mil coms prepares to spin again.
The sentence-reduction agreement in the Majid Khan case, which will (as that label suggests!) reduce his sentence in exchange for Khan giving up on his effort to secure testimony regarding his treatment while in CIA custody.
Some brief com…
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May 7, 2021
Episode 201: Revels, Revolts, and Reduxes…Part Deux
Our latest episode is shorter than normal because...well, we recorded most of it and then lost the file. Suffice to say we were a bit tired by the time the re-recording was done! Or maybe we're better off this way? Either way, tune in for our thoughts on the DC Circuit's en banc grant in the al Hela GTMO detainee case (asking whether the Fifth Amendment Due Process Clause applies at GTMO), the ACLU's attempt to get SCOTUS to review a FISCOR decision relating to the ACLU's efforts to compel public release of FISC opinions on First Amendment grounds, and the recent FOIA-based release of the 2017 Trump administration changes to the 2013 Obama administration "PPG" rules on targeted kill/capture operations outside of areas of active hostilities.
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Apr 20, 2021
Episode 200: 5% of the Way to Episode 4000!
Thanks so much to everyone who attended (virtually) tonight's live recording of episode 200! It was a blast. We covered:
The drawdown in Afghanistan and its legal implications (for the AUMF, detention, habeas litigation, the use of force, you-name-it)
The latest developments in the Military Commissions
The new round of sanctions against Russian entities--particularly those relating to the SolarWinds episode
FBI's use of a Rule 41 search(-and-seizure) warrant to delete webshells off of servers compromised as part of Hafnium's Microsoft Exchange exploitation
Taking stock of the Biden Administration on national security law issues at the (very roughly) 100 day stage
All that, plus a fun array of audience questions on matters ranging from the professional to the personal.
We are grateful for all you listeners. Thanks for making the first 200 episodes so fun. Just 3,800 shows to go before we find something better to do!
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Apr 12, 2021
Episode 199: Why Is There No SJA Aboard the Starship Enterprise?
In this week's episode, co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
The proposed Domestic Terrorism Prevention Act (and DOJ's January 2021 response to an earlier version of the DTPA)
A pair of recent federal prosecutions involving attempt/conspiracy to provide material support to the Islamic State--and corresponding lessons about the way in which terrorism cases are developed using cooperating witnesses and undercover officers.
The DC Circuit's ruling in the al-Tamir (was al-Hadi) military commission case (rejecting the defendant's arguments about the adequacy of the government's proposed remedy for a situation in which the presiding military judge had made rulings while seeking employment elsewhere in the government).
We have a National Cyber Director nominee at last, and it's a good one.
SCOTUS and the Shadow Docket: insights from the Tandon ruling.
All that, plus the usual frivolity!
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Apr 5, 2021
Episode 198: What Tattoo Should Steve Get?
Welcome back! This week your co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
The PCLOB's report on Executive Order 12,333
The government's decision to shutter Camp 7 at GTMO, consolidating those detainees with others at Camp 5
The proposed DC National Guard Home Rule Act
The Supreme Court's decision to vacate and remand (for dismissal on mootness grounds) the Second Circuit's decision finding that President Trump violated the First Amendment by blocking followers on his Twitter account--and Justice Thomas's accompanying comments on ways that the First Amendment might be construed to apply to private social media platforms.
A Fourth Circuit's ruling rejecting a Fifth Amendment Due Process challenge to the Terrorist Screening Database system
All that, plus opening day for the Mets!
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Mar 26, 2021
Episode 197: Statler and Waldorf
Just in time for your weekend entertainment, NSL Podcast is back with a new episode. This time the show was recorded live before a (Zoom-based) audience of Texas Law alumni, which made for a nice change of pace! Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
War Powers reform: whither the 1991, 2001, and 2002 AUFMs? Might there even be agreement on how to handle "associated forces" in a 2001 AUMF reform package?
The Tsarnaev (Boston Marathon bombing) case: SCOTUS has granted cert on the jury issue, but will the Biden Administration still pursue the death penalty in general?
Court martial jurisdiction
Judicial deference on security matters -- including IEEPA and CCMC (Communist Chinese Military Companies) designations
The Fourth Circuit reinstating the jury's decision convicting a man of acting as an (unregistered) foreign agent for Turkey
An extradition of a North Korean citizen...how'd that happen?
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Mar 9, 2021
Episode 196: Good…and Terrible!
An extra-fun episode because we have an extra person with us tonight: Texas Law 3L Jake Bishop, our special guest host! Jake, thanks for joining in the fun!
Tune in, as Jake and co-hosts Steve Vladeck and Bobby Chesney discuss:
The return of the PPG? The Biden administration reinstates, for now, certain rules regarding the use of lethal force outside areas of active hostilities. Will it last? Does it matter?
AUMF reform: the 2002 (and 1991!) AUMF version
AUMF reform: the 2001 AUMF version
The prospects for a "covert" response against Russian networks in relation to SolarWinds, and whether that makes any sense
Steve's (apparently brutal) oral argument before the CAAF today
Oh, and apparently there is a sequel to Coming to America? Maybe they should have tried a bit harder on that one....
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Mar 2, 2021
Episode 195: Sparkly Rainbow Snowboots!
Well, it's been a while, thanks to the ice/snow/power/water fiasco we recently underwent in Texas. But, though tired and not very prepared, we are back tonight! Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
The domestic and international law grounds cited by the Biden administration for its recent airstrike in Syria
An update on the situation regarding high-value Islamic State detainees held by the SDF in Syria (and whether they ever were in US custody)
A note on the role of "true threat" charges in insurrection-related cases: how specific (if at all) must such charges be vis-a-vis the threatened object of the threat?
More developments at GTMO
The Biden administration's response to Kashoggi in comparison to its response to Navalny
And some rather-rambling frivolity, mostly in the anticipation for Coming 2 America dropping in a few days.
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Feb 10, 2021
Episode 194: This Podcast Is Integrity-Curious
We had great fun recording this one, thanks to special guest Greg Gisvold (consultant and senior fellow with the Rule of Law Collaborative at the University of South Carolina) is the winner of a recent charity raffle in which the prize (or penalty???) was ... cohosting the show with us! That proved to be great news for us, for Greg's work around the globe working in support of rule-of-law-building programs couldn't be more interesting and important. Listen in to learn more, as we cover:
The latest impeachment developments
An update on Steve's litigation (at the Court of Appeals for the Armed Forces) on court martial jurisdiction and former servicemembers
The delay of the Hambali (et al.) arraignment at GTMO
Whither those high-value Islamic State detainees the US acquired from our Kurdish allies back in October 2019?
And best of all, our interview with Greg Gisvold regarding rule of law capacity building around the globe
Stick around for a comically-overlong segment on t…
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Feb 3, 2021
Episode 193: ‘Tis Better to Have Impeached and Lost …
This week on NSL Podcast, co-hosts Steve Vladeck and Bobby Chesney discuss
The proposition that the First Amendment (particularly the Brandenburg rule) might matter for the Senate's trial of the impeachment of Donald Trump
The D.C. Circuit's ruling rejecting subject-matter jurisdiction over Philip Sundel's attempt to gain access to a closed proceeding in the al Qosi litigation at the GTMO military commissions, with a special focus on the extensive dicta concerning the standing of agency employees to challenge the actions of their own agencies
The controversy that erupted in light of news that KSM might be vaccinated
The delay in the arraignment of Hambali and his co-defendants at GTMO
The confirmation of Secretary Mayorkas at DHS, and the delay of a confirmation hearing for Garland to be AG
The Biden administration's termination of certain Trump-era cases DOJ had been pressing to SCOTUS
Canada's decision to formally list the Proud Boys as a terrorist organization, and…
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Jan 21, 2021
Episode 192: So…What Do We Do Now?
And then it was over. Wow. Here's hoping we can focus on traditional national security law topics from now on! Today is a pretty good start. We've got:
A new administration needs a welcoming gift...so, here's a delightful basket of...military commission charges involving the Bali/Jakarta bombings???
A parting gift from Army Secretary McCarthy: AR 190-8 no longer applicable at GTMO
The DC Circuit weighs in on Hoda Muthana's citizenship status--ruling against her and thus also against her father's attempt to compel the government to support her return to the US from Syria (where she had been married, twice, to Islamic State fighters)
The DC Circuit also weighs in on the Zaidan case, finding no standing to the sue the U.S. government for alleged targeting for drone strikes in Syria where the allegations of such targeting were deemed too speculative
Larabee: apparently Steve is going to have do so more briefing soon regarding court martial jurisdiction over former servicem…
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Jan 12, 2021
Episode 191: The Biggest Fiasco of Them All
We're back with further discussion of the insurrection:
Is it constitutional for the Senate to carry on with trial of an Article of Impeachment if the impeached official is no longer in office? Yes, yes it is. Disqualification from future office is a separate and independent purpose of the trial phase, independent of removal from office; where it otherwise, any half-wit could avoid such punishment simply by resigning once it became clear they were likely to lose in the Senate.
We review the strong statement of FBI and DOJ engagement in pursuing the ringleaders and others culpable for the January 6th attack.
What really happened to the Would-Be-Acting-Twice-Nominated DHS Secretary Chad Wolf? It's a tale of statutory inevitability. At any rate, welcome to the front office Pete Gaynor!
Does the disqualification-from-office provision of Section 3 of the 14th Amendment apply to Trump's outrageous conduct? Well, that 6:01pm tweet of his wants to make a case for providing aid-a…
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Jan 6, 2021
Episode 190: Day of Infamy
Today was a national tragedy of the first order. Tonight we discuss:
the many crimes that definitely were committed, and certain other crimes -- particularly seditious conspiracy -- that may have been committed (and how that relates to the First Amendment Brandenburg test)
the bizarre and indefensible lack of a strong police presence and a proper National Guard response (including an unpacking of the legal authorities governing control over DC's guard)
some familiar -- and some not-so-familiar -- interpretive questions associated with the 25th Amendment (including not just the role of "Acting" secretaries, but also the question of what happens if the president's "rebuttal" letter is followed instantly by the firing of all the secretaries who signed the original letter)
impeachment issue, including the prospect of proceedings lasting beyond January 20th...and the possibility of an outcome permanently barring Donald J. Trump from office
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Dec 31, 2020
Episode 189: Merry New Year!
How about a surprise mini-episode on New Year's Eve??? Sure, why not! Tune in for...well, not much. We just wanted to say hi, happy new year, thanks for being listeners, and 2020-Don't-Let-The-Door-Hit-You-On-The-Way-Out!
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Dec 22, 2020
Episode 188: Not *That* Enterprise
Hello from Austin, home of SolarWinds and CyberTrucks! [ed. note: uh, no. Let's go with home of bbq and tacos instead] We're back with another round of discussion and debate with Professors Steve Vladeck and Bobby Chesney, as they cover:
Erica Newland's NY Times op-ed arguing that DOJ attorneys should have resigned early on during the Trump administration
What exactly counts as a seditious conspiracy for purposes of (i) federal criminal law and (ii) the Uniform Code of Military Justice? Asking for a friend...
The sudden rise, and apparent collapse, of a rushed attempt by DoD leadership to direct separation of NSA and Cyber Command
Prospects for a veto override if Trump vetoes the NDAA tomorrow
Section 1705 of the pending NDAA: an authority for DHS CISA that in some ways speaks directly to the flaws exposed by the SolarWinds debacle
Al Shabaab's 9/11-style plot, and the compelling ordinariness of the Justice Department's decision to prosecute it in Manhattan
Pan A…
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Dec 15, 2020
Episode 187: Trumplandia in the Twilight
Hey, we're back on our weekly schedule! How 'bout that...now we'll probably skip the next three, but hey, until then, we've got a quite a show, not to mention the launch of our holiday charity drive! What's that all about? Well, it's simple: give $5 or more to Casa Marianella, forward the emailed receipt that you get from them to ThisIsTheWay@strausscenter.org (.org, not .com!), and you will be entered in a drawing. What drawing? Well, after January 15, we'll pick one of the entries at random, and that person will be invited to join us (date to be determined jointly) to CO-HOST an episode with us! Do it! Do it! C'mon, do it!
What's that? Oh, right. This week's show actually talks about:
Barr out, Rosen in
The demise of the Ken Paxton (well, "Texas") election suit
Electors doing their jobs, electors doing...something else
The "Safe Harbor" rule and justiciability of electoral slate challenges
The SolarWinds cybersecurity mess
TikTok v. Trump: The DC Circu…
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Dec 8, 2020
Episode 186: Jumping the Kraken!
It's National Safe Harbor day (for all you Electoral College enthusiasts), and we're here to celebrate with a new show. Join for spirited but respectful debate between Professors Chesney and Vladeck as they discuss:
The legal basis for a possible presidential action to compel Pfizer to bump the United States ahead of other countries when it comes to accessing vaccine doses beyond the 100m covered in the current contract
Texas Attorney General Ken Paxton's attempt to get the Supreme Court to adjudicate a claim by Texas that the election results in Georgia, Wisconsin, Michigan, and Pennsylvania all should be thrown out
The Supreme Court's ruling (granting injunctive relief) in Roman Catholic Diocese of Brooklyn v. Cuomo, concerning the application of the First Amendment Free Exercise Clause to New York's emergency rules on maximum-occupancy for purposes of pandemic control
Whither the NDAA? We take note of the veto threat, and offer thoughts on selected issues in the bill inc…
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Nov 30, 2020
Episode 185: The Blah-to-Coup Ratio is Increasing
And...we're back! Tune in as Professors Steve Vladeck and Bobby Chesney discuss the latest in national security legal developments, including:
Prospects for the Biden Administration to chart a new course with respect to (a) the use of military detention at GTMO, (b) the transfer of GTMO detainees approved for such transfer already, or (c) the use of military commissions as the vehicle for criminal prosecutions
Prospects for the nomination to be Secretary of Defense, and the role of the federal statute requiring servicemembers to be out for at least seven years before becoming eligible for that (civilian) position
Comments on the other national security nominees to this point
More on the plethora of election-related lawsuits and the larger problem of bogus claims about massive fraud
Steve's win in the Larrabee lawsuit, in which Judge Leon has now held that it is unconstitutional to subject separated servicemembers to face recall for court-martial prosecution for post-separat…
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Nov 11, 2020
Episode 184: Make Rule 11 Great Again!
In this week's episode, co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
The array of firings and appointments of senior Defense Department officials
The law governing the General Services Administration and support for presidential transitions
Whether it is appropriate to place pressure on Jones Day (and their other clients) based on the involvement of Jones Day lawyers in election-challenge lawsuits
United States v. Maiorana: charge against a Staten Island man, under 18 USC 875(c) (threats of violence), based on vile online postings about killing protestors and government officials (raising First Amendment issues relating to the difference between the "True Threat" and "Incitement" categories)
TikTok update: tomorrow (the 12th) is the CFIUS divestment deadline....what will happen next?
Since *someone* hasn't watched the first Mandalorian season 2 episodes yet, we are left to chat about the new owner of the Mets and the chances of a Dodgers/Yankees-style spendi…
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Nov 6, 2020
Episode 183: It’s Late, and We’re Loopy
We are back, but alas we're here to talk about the election! If you were hoping for a national security-focused escape from the election, well, we'll make it up to you soon)!
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Oct 21, 2020
Episode 182: This Podcast Will Keep Going Until They Come For Us!
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-aw…
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Oct 8, 2020
Episode 181: This Podcast Has Lots of Jitter
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…
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Sep 29, 2020
Episode 180: This Podcast Really Should Be Weekly…
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!
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Sep 15, 2020
Episode 179: This Podcast Is “Considerably Recalibrated”
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 (unsuccessf…
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Aug 31, 2020
Episode 178: What Would Robert Jackson Do?
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.
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Aug 21, 2020
Episode 177: This Podcast Does Not Have a Navy
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 car…
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Aug 10, 2020
Episode 176: This Podcast Won’t Play Football This Fall
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, t…
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Jul 30, 2020
Episode 175: The President Has No Authority to Delay This Podcast
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.
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Jul 21, 2020
Episode 174: Portland Trailblazing
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…
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Jul 10, 2020
Episode 173: This Is John Roberts’s Podcast
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?
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Jul 2, 2020
Episode 172: Cleanup on Aisle Trump!
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).
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Jun 25, 2020
Episode 171: There’s a Spectrum of Corruption
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.
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Jun 19, 2020
Episode 170: This Podcast Is Not Subject to (Prior) Restraint
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: un…
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Jun 12, 2020
Episode 169: Now We’re a Third Amendment Podcast
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 ag…
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Jun 2, 2020
Episode 168: On the Brink with the Insurrection Act
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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May 20, 2020
Episode 167: Podcast Emergency Action Documents
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.
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May 13, 2020
Episode 166: This Podcast Has Temporary Absolute Immunity
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 t…
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May 1, 2020
Episode 165: This Podcast Prefers Its Nothing Burgers to Be Medium Rare
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…
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Apr 22, 2020
Episode 164: LIBERATE THIS PODCAST!
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 mi…
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Apr 15, 2020
Episode 163: This Podcast Will Have a Very Powerful Reopening
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…
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Apr 8, 2020
Episode 162: The Penn Is Mightier Than the Sword!
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) o…
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Apr 1, 2020
Episode 161: This Podcast Was Recorded “Before There Were Privacy Laws”
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.
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Mar 27, 2020
Episode 160: This Podcast Is Invoking “P”!
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…
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Mar 21, 2020
Episode 159: This Podcast Is Zoom-y!
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…
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Mar 11, 2020
Episode 158: What SCOTUS Can Learn from Franklin Barbecue
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 t…
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Mar 4, 2020
Episode 157: At Least There Are No Zombies…Yet
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 de…
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Mar 3, 2020
Episode 156: This Podcast Is VUCA!
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!
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Feb 26, 2020
Episode 155: This Podcast Is Not Wearing a Facemask (But It Did Wash Its Hands)
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)…
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Feb 19, 2020
Episode 154: This Podcast Is Not Just a “Piece of Metal”
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 sponta…
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Feb 12, 2020
Episode 153: This Podcast Has All the Elsas (But No Eminem)
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!
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Jan 29, 2020
Episode 152: John Bolton Is Welcome to Testify on this Podcast
After a wholly-frivolous episode last week, we are back with...well...a slightly-frivolous episode this week. Tune in as your co-hosts Steve Vladeck and Bobby Chesney review and debate:
The likely procedural, jurisdictional, and other legal issues that may arise if and when the Senate issues a subpoena to John Bolton and the White House attempts to prevent his testimony.
The Justice Department's recent decision to concede the impropriety of two of the FISA Title I applications that had been submitted to the FISC in relation to Carter Page, and what this might mean as we continue to barrel towards the Ides of March deadline for renewal (or not) of four FISA authorities.
Testimony at GTMO from the architects of the "Enhanced Interrogation Techniques" program CIA used on high-value detainees, reminding us among other things that the 9/11 trial is supposed to start in (checks watch) less than a year.
Eddie Gallagher's decision to denounce the servicemembers who testified against…
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Jan 22, 2020
Episode 151: This Podcast Deserves (at Least) One Vote for the Hall of Fame
Oh heavens, what were they thinking? This week on the National Security Law Podcast, your hosts Steve Vladeck and Bobby Chesney bring you...well, not a single second of national security law talk. Nope, instead this episode is all-frivolity from start to finish. Movies, tv, sports, books...anything but the actual topic of the show! But, hey, maybe you could use a break from the headlines? Rest assured, we'll be back next week with our usual format.
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Jan 16, 2020
Episode 150: This Podcast Can’t Spell Sesquicenteninial!
It's episode 150, and to celebrate we have a special guest: The Director of the Cybersecurity and Infrastructure Security Agency (CISA), Christopher Krebs! That's right, we've got all the cybers this week, and a fun guest to walk us all through it. That, plus a smattering of sign-stealing frivolity and Rush appreciation! We'll be back next week with our usual takes on the news...
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Jan 6, 2020
Episode 149: This Podcast Will Not Serve as a Notification to Anyone About Anything
Not surprisingly, this weeks episode focuses entirely on the set of legal and policy questions raised by the airstrike that killed, among other, the Iranian general Qassim Soleimani in Iraq. But of course there is still frivolity, too, as the show finishes with discussion of ... Frozen II.
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Dec 18, 2019
Episode 148: This Podcast Is “Thug #7”
Tired of watching the impeachment? Turn away from your monitor/tv, put in your earbuds, and go for a nice walk while listening to the latest National Security Law Podcast! This week we have Professors Chesney and Vladeck discussing and debating:
The DOJ OIG Report and its account of 17 significant errors associated with the FBI's presentation of information in the series of FISA Title I applications concerning Carter Page. This, of course, leads to a larger discussion of FISA reform.
SCOTUS designates March as Subpoena-palooza month! That's right, oral argument in all three Trump-related subpoena cases will occur in consolidated fashion then, with an opinion then expected by the end of June.
The National Defense Authorization Act for FY'20 is on its way to the President's desk, and will soon be law.
But what you really want to know, of course, is ... how was the Dear Evan Hansen performance the other night? Your cohosts were there, and have a report!
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Dec 10, 2019
Episode 147: Sometimes You Get a Donald J. Trump
Welcome back to the National Security Law Podcast! This week we discuss:
The two Articles of Impeachment
The Inspector General's Report on the origins and conduct of the FBI's investigation into Russian election interference
Amazon's lawsuit arguing that President Trump improperly influenced the DOD cloud contract bid selection
The NDAA and the legal framework for DoD to conduct (and counter) grey zone information operations
The investigative report on persistent overstatement of success in Afghanistan
The attempt to Dzokhar Tsarnaev to make a claim for juror/prosecutor bias in the Bostom Marathon bombing case
The decision to suspend the process of designating 1 or more Mexican drug cartels as Foreign Terrorist Organizations
That, plus some frivolous commentary on football. Alas, no review (yet) of Mandalorian episode 5....
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Dec 4, 2019
Episode 146: What’s In Your Wallet? A Subpoena!
Welcome back to the National Security Law Podcast! Tune in as Professors Vladeck and Chesney debate and discuss the week's national security law news, including:
Trumplandia: The House Intelligence Committee's report shines a spotlight on certain call records, leading some to question how such records lawfully are obtained by investigators. This leads to a discussion of the Fourth Amendment, the third-party doctrine, the Stored Communications Act, and both grand jury and congressional subpoenas.
More Trumplandia: The Second Circuit has ruled against an effort to prevent Deutsche Bank and Capital One from complying with a Congressional subpoena for Trump-related records, adding to the slew of cases on this topic.
Adham Hassoun and indefinite immigration-law detention for dangerous persons: Back in episode 116 we noted that Hassoun had completed his 15-year sentence (following a conviction for involvement in a murder conspiracy under 18 USC 956(a)), but is being held pending r…
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Nov 26, 2019
Episode 145: The Meh-mometer Is Stuck at Meh
Happy Thanksgiving to all! If you are stuck in an airport or on a long drive this week, we've got you covered for at least one hour, as Professors Chesney and Vladeck discuss and debate:
The military commission cases: we provide a full "reset" bringing you up to speed on where things stand with each of the major cases (including a reminder about an important pending motion in the 9/11 case)
National Cupcake Day gives way to the Ides of March, as Congress pushes the sunset for several notable FISA provisions from 12/15/19 to 3/15/20
The Secretary Esper/Spencer dispute and the good-order-and-discipline issue raised by the president's intervention in the Gallagher case
CENTCOM and SDF get the band back together in Syria, and detainees result...which is a timely reminder that we still depend on SDF to run detention ops in Syria.
Subpoena time for Don McGahn? We consider the prospects on appeal, as well as the implications for former National Security Advisor John Bolton.
Bu…
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Nov 20, 2019
Episode 144: Lawful But Awful
Episode 144 is here! It was no easy task to sort out which topics to discuss this week, but in the end the Trumplandia segment prevailed over almost all the others. The end result? Tune in to hear Professors Chesney and Vladeck discuss and debate:
The latest developments in the Impeachment Inquiry (including today's testimony from Ambassador Sondland).
President Trump's decision to issue pardons to two soldiers facing murder charges and to restore rank to a Navy SEAL previously convicted for posing for pictures with a dead detainee.
The Trump Administration's apparent decision to alter the longstanding U.S. position that Israeli settlements in occupied territory violate international law.
The latest twist in the two Mazars subpoena cases, including the administrative stay issued by Chief Justice Roberts in of them.
Attorney General Barr's barn-burner of a speech to the Federalist Society's National Convention, which offered a controversial take on an array of presidentia…
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Nov 13, 2019
Episode 143: We won an award?!?
When you are done watching the impeachment hearings and just can't take it anymore, it's time to open up a can of ... National Security Law Podcast! For your happy hour or other occasions, we've got a fresh episode. Tune in as Professors Chesney and Vladeck discuss and debate:
Yesterday's SCOTUS argument in Hernandez (the cross-border shooting case, which Steve argued!)
Alasaad v. Nielsen, in which a district judge rejects the government's position that the Fourth Amendment border exception applies with its usual force in relation to comprehensive searches of phones and other electronics at ports of entry. Key takeaway: there still is no *warrant* requirement, yet there is a requirement not only that there be reasonable suspicion but that said suspicion concern the presence of *contraband*--i.e., no fishing expeditions for other purposes.
National Cupcake Day (Dec. 15) approaches...and with it, the sunset for a series of foreign-intelligence collection authorities (Lone Wolf…
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Nov 9, 2019
Episode 142: We’ve Got Company!
What fun! We recorded this one in front of a large live audience at the Annual Review of the Field conference run by the ABA Standing Committee on Law and National Security, and we did it as a joint podcast with our friends at ABA's National Security Law Today podcast: Elisa Poteat and Yvette Bourcicot! We covered:
Islamic State detainees, included (but not limited to) the Beatles
The approach of National Cupcake Day (a.k.a. December 15th, a.k.a. the date when several FISA surveillance and document-production authorities will sunset if Congress does not act)
A review of three key Supreme Court cases that are pending this term (cross-border shootings and the Constitution, the Suspension Clause, and the President's power to remove independent agency heads)
All that and more, but, alas, no frivolity this week! We just didn't have the time. But, don't worry we'll be twice as frivolous next week!
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Oct 30, 2019
Episode 141: The House Has Voted to Authorize This Podcast
Granted, it's not Days of Future Past, but our episode 141 is still pretty good! This week, Professors Vladeck and Chesney discuss and debate:
The al-Baghdadi raid (and misunderstandings about Congressional notification)
A GTMO habeas decision in Abdulrazzaq
Who will be the next Secretary of Homeland Security? Debating the authority of an Acting Secretary to alter the order of succession at slots #4 onward...
Trumplandia & Impeachment: What to make of the decision to vote on authorizing the inquiry after all? And is anyone left waiting to be persuaded one way or the other?
Frivolity, inevitably, covers the World Series (especially the controversy from Game 6), with some GoT for spice along the way!
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Oct 23, 2019
Episode 140: We Almost Tried Hard!
We've got a short one this week, but also we didn't plan or prep much, so we have that going for us!
Tune in as Professors Vladeck and Chesney discuss the 2nd Circuit oral argument in Trump v. Vance (regarding the President's claim of temporary immunity from criminal investigation), and a pair of important Supreme Court cert. grants (one involving the scope of the Suspension Clause, and the other giving rise to the possibility of a ruling undermining the constitutionality of the "independent" agency model (in which President's may not remove agency heads at will). But as always there is frivolity too, so stay to the end for a take on the new Star Wars trailer as well as NBA predictions!
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Oct 17, 2019
Episode 139: Hello from Austin…Hall?
We recorded today before a live audience in Austin! Austin Hall, that is, on the campus of Harvard Law School! Special thanks to Matt Morris and the great students of the Harvard National Security & Law Association, and to all who attended!
We certainly didn't lack for topics. Professors Vladeck and Chesney discussed and debated:
The "Beatles" detainees: What are the hurdles to continued military detention of these two formerly-British Islamic State members who are now in U.S. custody in Iraq? Will courts assert jurisdiction? Would they find that IS is in the scope of the '01 AUMF and the NDAA FY'12? Is there still an armed conflict? And if they instead are prosecuted, what are the hurdles? What does pending litigation in the UK Supreme Court have to do with it all?
Trumplandia: So much to discuss, including Giuliani's peremptory strike against testifying and the question of attorney-client privilege, the Mazars decision and Judge Rao's dissent, and much more.
DHS r…
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Oct 9, 2019
Episode 138: “That’s Nobody’s Business But the Turks”
In addition to quoting They Might Be Giants lyrics, this week's episode features cohosts Bobby Chesney and Steve Vladeck taking on three big issues:
The Impeachment Inquiry & the White House Counsel's Letter on Non-Cooperation
President Trump's decision to abandon America's Kurdish allies and thus set in motion the potential release of thousands of Islamic State fighters
A set of newly-declassified decisions by the FISC (and FISC-R) involving the latest round of Section 702 certification, including a finding that compliance problems at FBI (with respect to running US person queries of the 702 database) amounted, in the totality of the circumstances, to a Fourth Amendment violation.
As for frivolity: the world of sportsball meshed with foreign relations as the NBA quivered in the face of a Beijing backlash, all triggered by a tweet from the Rockets' GM. "It is time for us all to decide who we are..."
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Sep 26, 2019
Episode 137: Do Us a Favor Though Because This Podcast Has Been Through a Lot
So, you'll never guess what we're going to talk about in this week's episode.
[Editor's note: Guys, you can't just say that and then put in no further details in these shownotes. Get back to work! Hello, are you there? Amateurs...]
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Sep 18, 2019
Episode 136: This Podcast Needs a Reboot!
And we're back, with a lot of news to cover! Tune in for discussion and (respectful) debate with our cohosts, Professors Vladeck and Chesney, as the review:
Is it proper for the DNI to withhold from HPSCI a whisteblower complaint under the Intelligence Community Whistleblower Protection Act (ICWPA...Ick-Wipp-Uh!), where the IG has made a determination that the statutory standard has been met but the DNI disagrees? And what remedies might HPSCI (or SSCI) have if the answer is no?
About that colon/semicolon issue involving Marbury v. Madison...
Not surprising, but still fascinating: DOJ sues Snowden and his publisher because Snowden didn't seek pre-publication review for his new book or for certain paid speeches.
Back to GTMO: Two D.C. Circuit judges make a point of weighing in, via a dissent from denial of a suggestion for rehearing en banc in Qassim, to express their view that (notwithstanding Boumediene) noncitizens held at GTMO cannot invoke the Fifth Amendment Due Proce…
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Sep 11, 2019
Episode 135: Do You Hear the Podcast Sing
Tune in to the latest episode of the National Security Law Podcast as your co-hosts Professors Chesney and Vladeck discuss and debate:
On the 18th anniversary of the 9/11 attacks: which elements of current counterterrorism law and policy would have come as the biggest surprise back in 2001? This includes a discussion of the removal of John Bolton as National Security Adviser.
The district court ruling finding that the process for adding U.S. persons to the Terrorist Screening Database violates the Fifth Amendment (Elhady v. Kable).
Judge Lamberth's ruling on whether GTMO detainees may have access to a private doctor
A note on the passing of Judge Robertson
All that, plus way too much "singing" when your co-hosts discover that they both are planning to see Les Mis tonight!
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Sep 4, 2019
Episode 134: A Very Brady Episode
And we are back with more discussion and debate of the latest national security legal news! Tune in for cohosts Steve Vladeck and Bobby Chesney as they take up:
Domestic terrorism and the questions such as (a) whether there ought to be a "designation" process for domestic groups and (b) whether the phrase "civilian population" presents vagueness issues if employed in a criminal law measure.
A trial date for the 9/11 trial at GTMO! Will it really be underway as of January 11, 2021? What impact might the election have? And why does that date look familiar?
Presidential disclosure of classified information: it runs the gamut from formal declassification to...tweeted photographs of photographs?
We've got one eye on the ongoing talk of a "peace" deal in Afghanistan. Apparently U.S. forces will remain in-theater for CT ops re al Qaeda and the Islamic State, meaning such a development might not have the legal consequences as to military detention that some might expect. But d…
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Aug 28, 2019
Episode 133: You Are “Hereby Ordered” To Listen To This Podcast
Well, that's not quite what the President said. It was something about American companies and trade with China, not you and your podcast app. And IEEPA can't be used to make anyone listen to this podcast, we suppose. But voluntary cooperation is welcome, and those who tune in this week won't be disappointed when they find co-hosts Vladeck and Chesney discussing and debating:
The International Emergency Economic Powers Act (IEEPA) as a basis for a potential POTUS order barring U.S. companies from transacting with Chinese counterparts
The latest developments (this time at the SCOTUS level) in the Ninth Circuit litigation over Trump administration rules attempting to restrict the pathways for seeking asylum in the US
An important but overlooked military commissions development involving the viability of inchoate conspiracy charges (and the meaning of a badly splintered D.C. Circuit opinion on that topic).
As for frivolity? Not that frivolous today, actually, as your ho…
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Aug 20, 2019
Episode 132: On the Way to Greenland!
And we are back with more debate and discussion concerning the latest national security and law news! In this week's episode, co-hosts Bobby Chesney and Steve Vladeck explore:
The legal complexities that followed from the resignation of Sue Gordon as Principal Deputy Director of National Intelligence and the follow-on appointment of Adm. Joe Maguire (up to that point the Director of the National Counterterrorism Center) to be the Acting DNI (a temporary appointment that by statute precludes him from continuing to serve as NCTC Director; no word on whether Amazon intends to use this as a plot point for its Liberty Crossing show).
Two new bills in Congress, each of which would create a new federal crime of "domestic terrorism" (see here for Senator McSally's bill, and here for Rep. Schiff's bill)
A Ninth Circuit ruling truncating the geographic scope of an injunction preventing the Trump Administration from implementing its plan to require asylum applicants to make their origin…
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Aug 6, 2019
Episode 131: El Paso and Domestic Terrorism
This week's episode features an extended discussion of domestic terrorism as a legal category and as a policy category, in light of the attack in El Paso. Among other aspects, we discuss:
Substantive criminal charging options at the state and federal levels
Arguments for an against federal expansion into this area
Federal terrorism crimes that can be applied in domestic terrorism cases
The pros and cons of expanding the "designated terrorist organization" concept to domestic groups
Preventive charging in the domestic terrorism context
What it would mean to (try to) import foreign terrorism intelligence-collection authorities into the domestic terror setting
We also discuss an important cert. petition pending before SCOTUS, raising the question whether noncitizens in the expedited removal context can invoke the Suspension Clause (DHS v. Thuraissigiam)
After an otherwise somber discussion, stay tuned at the end for some light-hearted frivolity celebrating the improbable…
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Jul 31, 2019
Episode 130: In Case of Vacancy, Who Becomes Our Acting Podcast Host?
And we're back with a new episode, with co-hosts Steve Vladeck and Bobby Chesney discussing and debating the latest national security law news (and, let's face it, engaging in *lots* of digressions). This week we've got:
Succession-Fest: We go deep into the weeds on a number of succession-in-office topics involving people named to be "acting" this-or-that. Of course we focus in particular on the prospect of an Acting Director of National Intelligence, but we also look ahead to developments impacting the Department of Homeland Security. And, just for kicks, we consider the implications of having a large number of acting officials as department heads in light of, oh, how about the 25th Amendment?
Military Commissions: We update a few topics from last week, while once more looking ahead to the eventual 9/11 trial.
SCOTUS in Summer: SCOTUS is out of session, yes, but still takes certain actions. We've got a Border Wall update, along with some really-in-the-weeds analysis of…
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Jul 24, 2019
Episode 129: This Is Quite the War Powers Podcast
This week on the National Security Law Podcast, with co-hosts Bobby Chesney and Steve Vladeck:
War Powers: Congressional testimony from the State Department's Acting Legal Advisor confirms that the administration has placed AQIM on the list of "associated forces" within the organizational scope of the 2001 AUMF, notes that the administration has not (yet) determined that Iran is within the scope of either the 2001 or 2002 AUMFs, and much more.
Prosecution vs Military Detention: A U.S. citizen who fought for the Islamic State was turned over by SDF to the United States, and is now back in the U.S. facing material support charges in federal court. We compare and contrast this outcome with the use of military detention in the case of John Doe, of Doe v. Mattis fame.
Prosecuting KSM and the other 9/11 Defendants: Meanwhile, on the military commission front, a major clash is looming in the prosecution of KSM and the other 9/11 defendants. They've moved to dismiss the charges…
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Jul 17, 2019
Episode 128: Now Witness the Power of this Fully Armed and Operational [PCLOB]!
For our latest episode, we offer you NSL Podcast Mad Libs in lieu of show notes!
We're back after a __ [number]-week break, and there have been some ____ [noun] security law developments in the meantime! Professors ____ [full name of celebrity] and [full name of sports star] are here to ____ [verb] all of it. ___ [adjective] ____ [plural noun] on this episode include:
Justice Stevens, R.I.P.: We reflect on key national security ____ [plural noun] he wrote or impacted.
Border ____ [noun] Litigation Update
SCOTUS trends: The ____ [noun] General keeps seeking early SCOTUS involvement in ____ [plural noun]. Steve's forthcoming ____ [name of school] Law Review article ____ [verb ending in -s] explains the significance of all this in terms of the ____ [noun] Docket, as you can read here.
PCLOB gears up: The ____ [noun] & Civil [plural noun] Oversight Board is back in action, identifying upwards of __ [number] current projects, including a review involving XKEYSCORE and anothe…
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Jul 1, 2019
Episode 127: It’s Bobby Bonilla Day!
Welcome back to the National Security Law Podcast, where co-hosts Bobby Chesney and Steve Vladeck cross-swords with courtesy and nerdistry while reviewing the latest national security legal news (along with a healthy does of frivolity at the end...and sometimes the middle...and the beginning...)! This will be the last episode until July 17th or 18th, and it covers:
Doe v. Mattis is back! Well, not in a major way. But we do at least have a reissued D.C. Circuit opinion that confirms what we all knew: the government had been negotiating with Iraq and Saudi Arabia, etc. We discuss whether the long process of allowing this to become public shows a system working well or problematically.
Back to the Border (Wall) - Judge Gilliam has now issued a permanent injunction in the Sierra Club lawsuit challenging the Trump Administration's attempts to generate new border wall construction funds via DOD's support-to-counternarcotics account. It's more or less the same legal analysis as…
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Jun 26, 2019
Episode 126: Sometimes, “Nothing” Is Important
We are back with the latest in national security legal developments, with Professors Chesney and Vladeck agreeing where they can and arguing respectfully (and, let's face it, nerdishly) where they can't. On tap this week:
Military Detention and the Constitution: We dive deep into the questions raised by the D.C. Circuits decision in Qassim, which raises the possibility that the Fifth Amendment Due Process Clause might apply in the context of habeas challenges brought by military detainees held at GTMO notwithstanding the Court's earlier Kiyemba decision.
Cyber Operations Against Iran: After our earlier discussions of a Persian Gulf of Tonkin scenario nearly became reality, we ended up seeing, instead, a possible series of cyber operations against various Iranian targets. We talk about whether this raises the same or similar separation of powers concerns, and more generally place this development in context with our earlier war powers debates.
Who's Who in the Pentagon Suc…
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Jun 18, 2019
Episode 125: Worst of Both Worlds
We are back with the latest national security law news, with your co-hosts Steve Vladeck and Bobby Chesney explaining, debating, and--let's face it--geeking out. This week we've got:
War Powers: The latest events in the simmering situation with Iran, and what they portend in terms of potential claims of Article II authority to use at least some amount of military force without further Congressional approval.
Military Commissions: The mil coms continue to generate pre-trial disputes, this time with a new round of disagreements about just who will serve as the capital-qualified defense counsel in Nashiri.
SCOTUS: The current term of the Supreme Court is nearing its end, and this week we saw some interesting developments including affirmation of the longstanding "separate sovereigns" rule (pursuant to which state and federal authorities may separately prosecute for the same underlying acts without violating the Double Jeopardy rule, something that has implications in light of the…
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Jun 13, 2019
Episode 124: Who’s Ron Swanson?!?
And we are back, after a one-week hiatus, with loads of national security law debate and discussion, not to mention some Grade B frivolity!
On tap for Professors Vladeck and Chesney:
Detention of Enemy Combatants: Assessing the significance of the SCOTUS cert. denial in al-Alwi, and Justice Breyer's statement about the possible impact of evolving circumstances over time
NDAA FY'20 Draft Provisions: The Senate and House NDAA bills are packed with interesting items, including the possibility of an exception to the GTMO transfer ban for purposes of medical treatment inside the United States, reinforcement of statutory preconditions to separating the NSA/CYBERCOM "dual hat," and more.
Detention and U.S. Persons: You don't see Ted Cruz and Diane Feinstein teamed up every day, so we take a close look at the latest version of the perennial Due Process Guarantee Act.
The Vetoed Yemen Hostilities Resolution and Its Impact from a Youngstown perspective: Some scholars say that the bill…
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May 28, 2019
Episode 123: Our Gym Was Named for the Espionage Act Guy???
In a final episode before taking a one-week travel break, co-hosts Bobby Chesney and Steve Vladeck discuss and debate an array of recent national security law developments including:
Assange & the Espionage Act: DOJ has unsealed a superseding indictment against Julian Assange, including a raft of Espionage Act charges with serious (and long-anticipated) implications for journalists. The indictment does not mention the connection between UT's Volleyball Gymnasium and a key architect of the Espionage Act back during WWI, so we also address that...
Border Wall Funding: In Sierra Club v. Trump, a federal district judge has issued a preliminary injunction in relation to the Trump administration's efforts to transfer funds to DOD's "Section 284" account, while also addressing the distinct "Section 2808" military construction funding mechanism.
SCOTUS Grants Cert. in the Cross-Border Shooting Case: Steve isn't busy enough, so SCOTUS has decided to hear Hernandez v. Mesa (on whet…
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May 21, 2019
Episode 122: That Didn’t Fly for Buchanan…
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 w…
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May 15, 2019
Episode 121: The Persian Gulf of Tonkin
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 reg…
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May 7, 2019
Episode 120: Bran, Bron, What’s the Difference?
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 th…
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Apr 30, 2019
Episode 119: This Podcast Is Dark and Full of Spoilers
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...
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Apr 17, 2019
Episode 118: Steve Targaryen, First of His Name
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…
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Apr 13, 2019
Episode 117: Y’all Got Designated
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…
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Apr 2, 2019
Episode 116: This Podcast Can Only Be Detained for Six Months
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:…
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Mar 25, 2019
Episode 115: This Podcast Does Not Have a Grandparent Born in Ireland
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…
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Mar 13, 2019
Episode 114: Manafortnite
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 P…
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Mar 6, 2019
Episode 113 – 702 : Madison :: 215 : Hamilton
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…
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Feb 26, 2019
Episode 112: And the Oscar Goes To…NSL Podcast!
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 revie…
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Feb 19, 2019
Episode 111: This National Emergency Podcast Requires the Use of the Armed Forces
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?
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Feb 12, 2019
Episode 110: This Podcast Is Not Subject to Military Jurisdiction
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 segu…
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Feb 6, 2019
Episode 109: The State of the Podcast Is Strong!
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…
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Jan 30, 2019
Episode 108: Is It Arnold Palmer or Iced Tea-Lemonade?
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 th…
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Jan 22, 2019
Episode 107: Clearly Right, Once Again
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!
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Jan 14, 2019
Episode 106: Schools Out For Summer
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…
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Jan 7, 2019
Episode 105: That Doesn’t Mean You Do It Stupid!
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…
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Dec 18, 2018
Episode 104: This Podcast Is a State Secret
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.
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Dec 11, 2018
Episode 103: This Podcast Should Be Dis-BARRed
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!
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Dec 5, 2018
Episode 102: This Podcast Is Bowl-Eligible
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…
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Nov 27, 2018
Episode 101: “To me, [this podcast] is perfect”
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 revi…
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Nov 14, 2018
Episode 100! Trumplandia: If I Did 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 d…
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Nov 6, 2018
Episode 99: The Deepest Dive: Surveillance, Section 702, and Section 215
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.
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Oct 30, 2018
Episode 98: That’s What Leadership Looks Like
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 no…
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Oct 26, 2018
Episode 97: FISA Part Deux (A Deeper Dive)
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-…
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Oct 25, 2018
Episode 96: A Deep Dive into…the Foreign Intelligence Surveillance Act
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.
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Oct 16, 2018
Episode 95: Not Everybody Be DPH’ing!
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 communication…
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Oct 10, 2018
Episode 94: The Enemy of My Friend Is My Enemy
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 Chine…
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Oct 2, 2018
Episode 93: Is This a Buddy Podcast?
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 opini…
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Sep 25, 2018
Episode 92: Have Fun Storming the Castle!
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 ag…
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Sep 18, 2018
Episode 91: A Deep Dive Into the History of Military Commissions
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!
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Sep 12, 2018
Episode 90: What’d I Miss?
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).
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Sep 4, 2018
Episode 89: A Deep Dive into the Steel Seizure Case (Youngstown Sheet & Tube v. Sawyer)
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 A…
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Aug 28, 2018
Episode 88: A Deep Dive into the Anwar al-Awlaki Case(s)
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 fur…
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Aug 21, 2018
Episode 87: The D.C. Circuit Ain’t Inquorate
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 ma…
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Aug 14, 2018
Episode 86: This Episode Was Not Recorded in the Situation Room!
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 becaus…
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Aug 7, 2018
Episode 85: Party Like It’s June 28, 2004!
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.
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Aug 1, 2018
Episode 84: Happily, We Found Someone Who Knows What They’re Talking About!
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.
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Jul 25, 2018
Episode 83: [Steve] Is the Kiss of Death
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 unde…
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Jul 17, 2018
Episode 82: Helsinki…Sweden!
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 fr…
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Jul 9, 2018
Episode 81: The Road to 10,000
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 (includin…
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Jun 27, 2018
Ep.80: SCOTUS-palooza
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.
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Jun 20, 2018
Episode 79: It’s a Girl!
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 - ano…
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Jun 12, 2018
Episode 78: Live from Singapore, Malaysia (?!?)
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…
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Jun 5, 2018
Episode 77: Pardon Me?
Hello friends, and welcome back to the latest episode! Last week was a bit quiet, but things are heating up. This week we review and debate:
War Powers: This week saw the release of the Office of Legal Counsel's memorandum on the U.S. airstrikes on Syrian military targets in April 2018. We explain what issue it addressed, situate it in context with earlier war power debates, and wrestle over the questions it raises (including, especially, what role if any UN Charter issues should or do play in relation to this constitutional question).
Doe v. Mattis (of course): A surprising incident involving the accidental monitoring of a phone call between Doe and his lawyers in New York came to light last week. Is it an example of a well-functioning system dealing with a good-faith accident, or a sign of trouble?
Military Commissions: We have a quick note on an attempt by al Baluchi to get the D.C. Circuit to intervene on an issue relating to evidence preservation (now that the CM…
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May 30, 2018
Episode 76: The Valley of Ignorance
This week on the show:
Another big win for FBI & DOJ in a terrorism prosecution, as a Maryland man gets 35 years for going to Somalia and becoming an unprivileged participant in hostilities for al Shabaab.
Speaking of DOJ wins: they also picked up a five-year sentence (plus massive restitution) for a Canadian man whom Russia's FSB hired to help with the massive Yahoo! hack a few years ago.
Military Commissions: A stunner out of the Court of Military Commission Review in relation to the 9/11 case, as the CMCR declares itself inquorate (drink!) due to the surprise recusal of two more judges. Meanwhile, Steve's Dalmazzi case (pending before SCOTUS) picks up a useful fact in the form of news that one of the CMCR judges has retired from the military yet continues to serve as a CMCR judge, thus demonstrating the dual-office aspect of the CMCR position.
Things Congress Empowers Presidents to Do: Among the important national security powers that Congress has conferred on the Pres…
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May 22, 2018
Episode 75: I Hereby Demand, & Tomorrow Will Officially Order, That You Listen to This Podcast
Never a slow week in this business...
This week we've got breakdowns and debates over some familiar topics:
Military Commissions: The convoluted proceedings in the al-Nashiri prosecution became a bit less tangled this week, as the government backed off its attempt to preclude intervention by a pair of al-Nashiri's erstwhile attorneys. Are we any closer to resolving the overall set of issues set off by claims of government monitoring of attorney-client communications though?
Doe v. Mattis: We are now drawing close to a ruling on the merits of the government's claim of authority (under the 2001 and 2002 AUMFs) to use military detention with respect to a US citizen the government asserts is an Islamic State member. The issue has been fully-briefed for some time, in fact, and now Judge Chutkan has scheduled a hearing. June 20th will be a big day.
Al-Shimari v. Duggan/CACI: This Alien Tort Statute suit against a private military contractor for abuse of prisoners at Abu Ghraib…
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May 15, 2018
Episode 74: We’re Spending It On Barbecue!
Spring classes may be over, but national security legal news hasn't slowed down one bit. This week, Professors Chesney and Vladeck wrestle with the following:
The D.C. Circuit ruling in Doe v. Mattis (forbidding the government from transferring him unless and until the government wins on the merits in the underlying habeas case). How did the majority parse the doctrine of transfers, why did the dissent disagree, what will happen next, and--by the way--isn't it clear at this point that he *could* be prosecuted in civilian court under 18 USC 2339B?
The D.C. Circuit briefing order relating to the al Nashiri military commission case: The "seven-layer dip" case now has about layers, but the Circuit appears poised to take a substantial bite out of it in one fell swoop. Whether this will result in further difficulties for the prosecution or, instead, pave the way to trial, is not yet clear.
The D.C. Circuit briefing order in Smith v. Trump, raising a mootness problem with an…
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May 8, 2018
Episode 73: The Penumbras of the Category
Welcome back to the National Security Law Podcast! This week, Professors Vladeck and Chesney discuss and debate the following:
Doe v. Mattis: The D.C. Circuit has affirmed the injunction barring the government from turning John Doe over to Saudi Arabia. We don't have their opinion yet, but we have ours, and we don't let lack of access to the court's explanation stop us from discussing at length what is likely to happen next!
Darbi Day: Ironically, DOD did just transfer someone else to Saudi Arabia: al-Darbi was supposed to be sent there from GTMO some six weeks ago, under the terms of his mil com plea agreement. Well, it finally did happen.
Gina Haspell's nomination: Later this week Haspell well testify in furtherance of her contentious nomination to be the Director of the CIA. Bobby & Steve argue a bit about the significance of the pre-hearing battles over disclosure of classified information, and more generally set the stage for a hearing in which it will be fasc…
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May 1, 2018
Episode 72: This Podcast Was Recorded Before, On, or After 9/11
No shortage of topics this week. Join us as Professors Chesney and Vladeck debate and discuss:
United States v. al-Hawsawi, in which Judge Pohl rules that a military commission prosecution can proceed against an accused 9/11 co-conspirator based on conduct that facilitated (and thus occurred prior to the culmination of) the 9/11 attacks. What is the measure of when "hostilities" begin? Does the Military Commissions Act of 2009 require a different result than would follow under international law? And for good measure: How does one define membership in an entity like al Qaeda?
Do recent media reports that "major combat operations" have (again) ended in Iraq have any legal significance?
What if anything might follow, for purposes of the military commission case against him, from the claim by KSM's defense team that he may have suffered brain damage while in CIA custody?
A January executive order gave Secretary Mattis 90 days to deliver a report to the White House recommen…
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Apr 24, 2018
Episode 71: Everyone Knows It Is Saudi Arabia!!!
We have much to discuss in the world of national security and law this week, including but not limited to the worst-kept secret in the world. And we have some grade-A frivolity if you are able to stay tuned to the end. To wit:
Doe v. Mattis and the district court ruling enjoining the government from transferring Doe to Saudi Arabia. Wait, what's that? The identity of the receiving state is a secret? Except that Doe is a Saudi citizen and there are multiple points where the briefing reveals that the plan in question is to send Doe back to Saudi Arabia. Ah well. We've got an extensive discussion of the good and the bad about Judge Chutkan's ruling on the injunction, functioning also as a preview of the oral argument that will occur this Friday morning.
The capture of 9/11-related suspect Mohamed Haydar Zammar: another high-profile captive with European citizenship in SDF custody in Syria, adding to the importance of determining what will become of those detainees for the…
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Apr 17, 2018
(Bonus Episode) Ep.70: The Corker-Kaine AUMF
Well, we're back, 24 hours after dropping Episode 69. Why? 2018, that's why!
Seriously, lot's to discuss:
A deep-dive into the draft 2018 AUMF from Senators Corker and Kaine. Tune in for a VERY detailed review and debate.
Meanwhile, Doe v. Mattis has suddenly moved into high gear. Looks like a transfer may be in the works, but we predict weeks of further litigation.
The Supreme Courts has figured out what to do next in the Microsoft case, and also has issued an interesting void-for-vagueness ruling.
And President Trump has decided *not* to issue the new Russia sanctions that Nikki Haley recently foreshadowed.
Hopefully that is it for this week!
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Apr 16, 2018
Episode 69: Friday Was Quite a Month
In light of the amazing developments last Friday, we decided to move the show up to today. Tune in for discussion of five things that happened just that one day:
A deep dive on the international law framework implicated by the US/UK/FR airstrikes on Syrian government facilities associated with chemical weapons (with a special emphasis on the UK's asserted humanitarian intervention justification).
An equally-deep dive into the US domestic law framework governing the use of the military (with a special emphasis on the problem of drawing the line between uses of the military that rise to the level of "war" and those that involve lethal force yet still do not count as war).
The OIG report on Andy McCabe.
The ongoing dispute over attorney-client privilege in relation to the search warrant executed at Michael Cohen's office.
The flurry of rumors about the imminent firing of Rod Rosenstein.
And if you can hang in for a full hour of that stuff, you'll be treated to the long-await…
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Apr 10, 2018
Episode 68: This Podcast Is Not Protected by the Attorney-Client Privilege
Welcome to episode 68! On tap for this week:
Tom Bossert is out, and Michael Cohen is in trouble. We'll talk mostly about the latter, with an emphasis on the way that attorney-client privilege law and procedure interacts with search warrants.
Fresh CAATSA sanctions, this time targeting Russian oligarchs. The Treasury Department is distinguishing itself as quite strong on Russia issues.
The Syrian government again uses chemical weapons, and the Trump Administration hints at another military response. We'll quickly review the domestic legal issues this scenario raises.
Digression on non-disclosure and arbitration agreements: From whispers of lifelong-NDAs for White House personnel, to stories about law firms requiring summer associates to sign both non-disclosure and arbitration agreements, questions of transparency, procedure, and rights are in the air.
Renewing the AUMF renewal debate: The Senate Foreign Relations Committee, under the leadership of Sen. Corker, is ab…
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Apr 3, 2018
Episode 67: CTRL-F Redaction Fail
Welcome back to the National Security Law Podcast! This week, Professors Vladeck and Chesney review the following recent developments:
A drone strike against AQIM targets in southwestern Libya: What if anything does this tell us about the Trump administration's legal and policy positions relating to the geographic and organizational scope of the post-9/11 armed conflict?
The firing of VA Secretary David Shulkin and nomination of Rear Admiral Ronny Jackson: Questions about the dual-office holding ban and the Vacancies Reform Act.
Attorney General Sessions and the decision not to appoint a second special counsel.
New details regarding the formal scope of the Mueller investigation.
The CLOUD Act: what exactly does it do in relation to (i) efforts by US investigators to compel production of data held by a US company overseas and (ii) efforts by foreign investigators to do the same thing in reverse with respect to US companies operating there but holding data here?
JASTA li…
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Mar 27, 2018
Episode 66: Can You DIG It?
Welcome back for another episode of the National Security Law Podcast, with Professors Steve Vladeck and Bobby Chesney. It has been another not-at-all slow week. On tap for today:
The CLOUD Act: It's now the law of the land. We will go into the law's particulars next week, but for now we do want to address what passage means for the pending Supreme Court case involving the government's attempt to force Microsoft to produce data stored in Ireland. Vacate-and-remand, dismiss as improvidently granted, or full steam ahead?
Military Commissions: Never a dull moment with the commissions! Judge Pohl has received dueling declarations from Secretary Mattis and former Convening Authority Harvey Rishikoff and Legal Advisor Gary Brown regarding the firing of the latter two, and a hard question looms regarding whether an evidentiary hearing will follow. Meanwhile, the Court of Military Commission Review has sent questions to, well, everyone, including Judge Spath. Judge Spath r…
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Mar 21, 2018
Episode 65: Caging a Tiger
With apologies for short shownotes, here are the headlines for this week's NSL Podcast:
The McCabe firing
The prospect of legislation permitting judicial review of any decision to fire Mueller
An update of the declaration of Secretary Mattis explaining why he removed the GTMO military commission's Convening Authority and his legal advisor
A decision by the Foreign Intelligence Surveillance Court of Review recognizing standing for ACLU and MFIA to press their claim for First Amendment-based access to FISC opinions
A decision by the Fifth Circuit rejecting the existence of a Bivens cause of action in Hernandez v. Mesa (the cross-border shooting case on remand from SCOTUS)
A recap of the issues in al Alwi, argued yesterday before the D.C. Circuit (raising questions about the enforceability of a PRB determination that a GTMO detainee should be transferred to Saudi Arabia, and about the continuing existence of detention authority in light of evolving circumstances in Afghan…
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Mar 15, 2018
Episode 64: Beware the Ides of CFIUS!
So there you are on the beach for spring break, drink in hand and headphones on. Time for some...National Security Law Podcast! We're back with a special midweek episode because, well, we'll never keep up with the news if we wait till next week (and we are worried you'll start listening to music--gasp!--if we leave you alone for too long!).
So here's what's on tap for today:
The executive branch may be getting a bit more unitary as Secretary Tillerson gives way to Secretary Pompeo at State, and Congress may soon be getting tangled in knots as it wrestles with the confirmation of Gina Hapsel to move from Deputy Director to Director of the CIA.
Prime Minister May has declared Russia's attempted assassination of a former spy, in the UK, to be an illegal "use of force" against the UK. Are those fighting words? We explore the legal implications, including questions relating to the difference (if any) between "use of force" and "armed attack." In the end, we contend that this…
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Mar 12, 2018
Episode 63: Mueller Is the Only Vulcan in the Room
Out on spring break but still listening to the podcast? We love it! Actually, your hosts Professors Chesney and Vladeck are out on spring break too, but before they left town they sat down to record episode 63 on Friday March 9th. If things have gone crazy over the weekend and you are surprised they aren't discussing them here, well, that's why!
This week's show, at any rate, catches up on a number of ongoing sagas:
The latest twists in the Mueller investigation: Yes, we feel duty bound to talk about the obligation to comply with grand jury subpoenas (looking at you, Sam Nunberg), but we also dig into the surprise emergence of issues involving Erik Prince (of Blackwater fame).
The military commissions "seven-layer dip" issues in the Nashiri case: We've been closely tracking the concatenating issues bedeviling the Nashiri prosecution, originating with a defense team claim about monitored attorney-client communications. This week, a key new detail emerged: the spat began wh…
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Mar 5, 2018
Episode 62: Wait–We Have to Talk About GATT?!?
It's not every week on this show that we get to talk about the Trade Expansion Act of 1962 and the General Agreement on Tariffs and Trade! And if that's not an appealing hook to get you to listen, we don't know what is. Ahem....
Let's try that again. On this week's show, Professors Vladeck and Chesney cover a mix of new and old topics:
President Trump's invocation of national security to justify new tariffs on steel imports: is it plausible from a legal perspective?
The war(s) in Yemen, a proposed joint resolution to limit America's military roles there, and a statement from DOD's GC providing a snapshot of views regarding the legal issues raised by those roles (including a gesture towards a Commander-in-Chief override argument should such a resolution somehow become law).
Checking in with our crisis-ridden military commission system: Nashiri's last remaining attorney argues that the CMCR lacks jurisdiction to hear an interlocutory appeal from Judge Spath's abatement d…
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Feb 27, 2018
Episode 61: Judge Pohl Says: “Hold My Beer”
No shortage of topics this week, but then again there was no shortage last week, or before that, or...ever. So, what's on tap? Tune in to hear Professors Chesney and Vladeck explore:
A host of Supreme Court developments, including action relating to DACA, immigration detention and the due process clause, Patchak and the question whether Congress can direct courts to dismiss a class of cases, and-especially-the United States v. Microsoft litigation and the question whether Microsoft can refuse to comply with a warrant where the data in question is held on a server outside the United States. That last topic in turn leads to an overview of pending legislation--the CLOUD Act--that might resolve the issue in an appealing way.
A host of Military Commission developments, including (in)action on the Darbi plea-based transfer, clarification on the appealability of Judge Spath's remarkable abatement ruling, and a bold move by Judge Pohl to compel Secretary Mattis to justify the firing…
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Feb 21, 2018
Episode 60: TL;DL – This Is Why We Can’t Have Nice Things
An over-long episode with a short title to reflect a very busy--and somewhat bizarre--eight day stretch in the wide world of national security law. This week, your hosts Professors Chesney and Vladeck weigh in on:
The Supreme Court's decision in Rubin v. Islamic Republic of Iran
The Supreme Court's denial of cert. in CareFirst
The Supreme Court's telling inaction on the government's request for cert.-before-judgment in the DACA litigation
The Defense Department's failure to transfer al Darbi from GTMO to Saudi Arabia in accordance with his plea agreement (oh how you'll enjoy the part when Steve reads extended passages from the 2016 NDAA and Bobby narrates the 2014 plea agreement!)
Judge Spath's mil com mic drop ("I'm out!"), as well as the military commission prosecutor's office attempt to secure interlocutory review (spoiler alert: probably should be a petition for supervisory mandamus)
A short review of the past few weeks of DOJ counterterrorism prosecution result…
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Feb 13, 2018
Episode 59: Share the Cookies
We don't lack for topics this week! In today's episode, Professors Vladeck and Chesney eat a number of cookies while talking about the following:
Rachel Brand steps down at DOJ. As George III might say, what comes next? Your hosts review the order of succession.
A triple update on military commission matters: Was the firing of Convening Authority Harvey Rishikoff linked to a possible plea negotiation with the 9/11 defendants? What's the deal with the Nashiri trial judge suggesting that the lone remaining defense attorney attend a death penalty training course? And what are the odds that the government goes ahead and transfers Darbi to Saudi Arabia next week?
Next up: Two (formerly) British men who became especially-notorious ISIS members are now in the custody of Syrian Kurds, and the question of how to deal with them for the long term has arisen. Should they go to GTMO? Back to the UK? Face military commission charges? Or capital charges in a regular Article I…
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Feb 6, 2018
Episode 58: Is It Treason Not to Clap For This Podcast?
Sorry that football season is over? Lucky for you, the National Security Law Podcast has no offseason! And lucky for your co-hosts, the world keeps generating new topics for conversation and debate. This week, Professors Vladeck and Chesney cover four main topics:
The president's "treason" remarks yesterday in Cincinnati
The next stages in the Nunes #Mehmo controversy:
What precisely must happen under the House rules in order for the Schiff Memo to see the light of day, and what rules and laws might come into play if the White House opposes release?
Will the FISC be persuaded to publish a redacted version of the original (and successive) FISA order applications involving Carter Page? Can those documents be obtained via FOIA?
Military Commissions and the firing of Harvey Rishikof and Gary Brown:
What might this signify, and why might it have happened?
What does it portend for the huge February 20th deadline for transferring al-Darbi out of GTMO pursuant to his…
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Feb 2, 2018
Episode 57: About that #Mehmo (Special Edition on the Nunes Memo Release)
President Trump has declassified the Nunes Memo and it now is available to the public. Your hosts--Professors Bobby Chesney and Steve Vladeck--give it a deep-dive review here in a special-edition podcast episode. Tune in to hear them discuss:
whether there are any factual claims in the memo which (*if* true) are worthy of concern (preview: they single out two);
whether any such concerns extend so far as to call into doubt whether FISC should have granted an order to surveil Carter Page (preview: no);
whether any such doubt extends to the larger FBI counterintelligence investigation involving Russia (preview: the #mehmo itself underscores that this investigation was well underway already); and
whether FBI Director Wray should now resign (preview: your hosts disagree.
Be sure to listen through to the very end, by the way; if you are a regular listener, you might be surprised by who gets most fired-up at the conclusion.
Meanwhile: please spread the word about this episode,…
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Jan 30, 2018
Episode 56: The State of the Uniom Is…ExStravagant!
You might not want to watch the State of the Union tonight, but don't miss this episode of the podcast! This week we cover:
The missing Russia sanctions? A statute enacted last summer appears at first blush to require the Trump administration to sanction people doing significant business with Russian military and intelligence entities, starting this week. It didn't happen, and some are alarmed. What did this statute actually require? We'll explore the situation, walking you through the statutory carve-outs.
The #releasethememo story evolves: alas, this bizarre topic from last week has not gone away, and with HPSCI now voting to release it seems we are headed still further into the woods. We review the context, explain how this relates to a mounting effort to delegitimize Deputy Attorney General Rosenstein, and why #releasethememo should also entail #releasethedissent.
Would it be constitutional to empower courts to oversee decisions to remove the Special Counsel? Re…
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Jan 23, 2018
Episode 55: #ReleaseThePodcast
Happy anniversary, y'all! It's been one full year since we launched this podcast, and we are very grateful for all our listeners. Here's hoping there is *less* to discuss in our second year!
This week, we've got:
The FISA Amendments Reform Act: How exactly does the new warrant requirement work, what it do with "about" collection, and how did it approach the question of "parallel construction"?
#ReleaseTheMemo: What the heck is this all about?
Must the government have a statutory or treaty basis to transfer John Doe (a Saudi-US dual-citizen held for many months now in US military custody in Iraq, and the petitioner in Doe v. Mattis) to the custody of a third country?
Travel Ban 3.0: on its way to SCOTUS in what is shaping up to be a blockbuster term.
The REAL ID Act and the expiration of a key deadline for travelers from certain states and territories.
The Anti-Deficiency Act and what it means for the pay of military personnel when the government is shutdown.
A tem…
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Jan 17, 2018
Ep. 54: Family Ties or Family Matters?
And we're back, with another weekly dose of national security legal news and analysis. Fresh off the stove this week we have:
Dalmazzi - Steve is just returned from his first Supreme Court argument, in the Dalmazzi litigation regarding whether military officers may serve both as CAAF and CMCR judges. Tune in to discover why the room erupted in laughter right before Steve began his argument, and to learn why Justice Kennedy wanted to know if Steve thinks Marbury was decided correctly!
al-Bihani et al. v. Trump - The first grand wave of GTMO habeas litigation largely wrapped up some time ago, but the filing of this renewed petition by a group of 11 detainees reminds us that more litigation is always possible. In this case, there are arguments to the effect that the armed conflict with al Qaeda has ended, and that President Trump in any event has abandoned reliance on the idea of detention solely for the duration of hostilities in favor of permanent detention.
The FISA Am…
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Jan 9, 2018
Episode 53: Tanks, Bombs, Bombs, and Guns
In this week's episode, Professors Chesney and Vladeck take on three sets of issues under the national security law heading:
ACLU v. Mattis (the US citizen enemy combatant case): Since the last episode, the government has permitted the ACLU to communicate with John Doe, who does indeed want ACLU to pursue habeas relief on his behalf. This quickly led to an exchange of filings disputing whether the currently-pending petition is valid, when the government should have to file its return in response, and whether the judge should renew the ban on transferring Doe in the interim. Your hosts go over all the fine details, and then move on to a rather-extended debate on how the legal merits will play out should the petition get that far (covering issues including the applicability of the AUMF to the Islamic State, and the relevance of Hamdi v. Rumsfeld vis-a-vis the Non-Detention Act as applied to this situation).
Dalmazzi v. United States: Very soon, co-host Steve Vladeck will be ma…
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Jan 3, 2018
Episode 52: Trump Derangement Syndrome or a Distraction from the Forever War?
Merry New Year!
2018 is underway, but in today's episode we are looking back at 2017. More specifically, we are looking back to predictions made in early 2017 regarding the changes President Trump surely would be making to certain executive orders and presidential directives relating to national security. How did those predictions turn out? It's rather complicated. Tune in to find out what has and has not happened, and why, as we consider the fate of five key documents:
EO 13491 (interrogation and the US Army Field Manual)
EO 13492 (GTMO closure)
EO 13567 (GTMO Periodic Review Boards)
PPD 28 (foreign persons and US SIGINT activity)
The "PPG" (constraints on the use of force outside areas of active hostilities)
Next, the discussion turns to larger questions about the general direction of national security law commentary in 2017. Everyone agrees that the Trump Administration has generated a host of novel issues, and that these issues are garnering a great deal of att…
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Dec 27, 2017
Episode 51: Temporary, Immediate, and Unmonitored Access to this Podcast
Well, 2017 is almost done. No doubt there are a few more kicks-in-the-pants on the way before it's all said and done, but hey, we can at least offer you one final episode of this podcast! So, you've got that going for you, which is nice...
Four topics today:
ACLU v. Mattis - Judge Chutkan has ruled. It's brief, it's favorable to ACLU, and it's got a good shot at ... being reversed on an interlocutory appeal, at least in part.
Section 702 renewal - well, here's another storyline that will certainly last into 2018. Congress officially kicked the can down the road, extending 702 unchanged until January 19th. Looks like we'll have something to chat about next month, for sure.
The first wave of sanctions under the Global Magnitsky Human Rights Accountability Act have arrived, giving us the perhaps-unexpected scene of President Trump issuing an executive order declaring human rights violations and corruption abroad to be national emergencies.
Predictions for 2018? Sure,…
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Dec 19, 2017
Episode 50: The Big Chill
Are your other podcasts letting you down by taking a holiday break? Never fear, National Security Law Podcast is here! With two host who would much rather be podcasting than grading exams, you are assured of an uninterrupted holiday stream of national security legal analysis, not to mention ill-informed takes on...movie soundtracks? Seems your hosts may have been in the eggnog a bit early this year. But nevermind that, let's get to the overview of what Episode 50 has to offer:
A postmortem on the mixed verdict in the Abu Khattala (Benghazi) trial in late November: The jury acquitted on the most serious charges, but did convict on others. What will this mean, if anything, for the long-running debate regarding disposition options for terrorism suspects? And why did the trial turn out that way?
The Presidential Transition Team emails produced to the Special Counsel by GSA: Beneath the political aspects, what are the constitutional, statutory, or other legal considerations th…
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Dec 12, 2017
Episode 49: Around the Horn With Interrogation, Detention, Prosecution, and Targeting
In this week's episode, Professors Steve Vladeck and Bobby Chesney pick up the thread on a handful of familiar issues, and introduce a few new ones as well.
Interrogation: Their first topic is a blend, actually: the case of Akayed Ullah, who attempted to set off a pipe bomb in New York City yesterday. Ullah was taken into law enforcement custody, but soon some quarters were calling for him to be placed in military custody for interrogation purposes. Your hosts will revisit the tangle of issues involving Miranda, presentment, habeas, and more that such arguments raise.
Habeas and military detention: Next up is a recap of Monday's hearing in ACLU v. Mattis, in which the government continues to resist efforts to determine whether a US citizen held as an enemy combatant in Iraq wishes to pursue habeas review, and whether that review can begin now or must await some further development.
The 2001 and 2002 AUMFs: DOD's acting General Counsel recently gave a speech outlining the…
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Dec 5, 2017
Episode 48: The Logan Act: Not Just Another Hugh Jackman Movie
In this week's episode, Professors Chesney and Vladeck catch up with a number of 2017's most-persistent national security law sagas.
For starters, there's the indictment and plea agreement of Michael Flynn. What does the charge signify, and what does this imply for the larger Mueller investigation?
This leads directly to a discussion of whether it is possible, as a legal matter, for the President to "obstruct justice" (and how that phrase has both legal and political significance).
From there, your hosts pivot to the slowly-unfolding drama of ACLU v. Mattis, where the district court has now begun to engage directly. The parties for the moment are fighting over the extent (if any) of the court's authority to order jurisdictional discovery.
Next up is the recent action in the Supreme Court of the United States, where (i) Travel Ban 3.0 just got some very good news, (ii) the Third Party Doctrine looks likely to be shrunk to some degree in Carpenter, and (iii) owners of Persian…
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Nov 28, 2017
Episode 47: Donuts and Depth Charges
And...they're back! Fresh off of Thanksgiving, Professors Chesney and Vladeck are (all too) fired up to discuss the latest national security law news (not to mention a bunch of stuff that just isn't relevant to this (or any decent) podcast). This week some familiar storylines resume, and a few new ones appear:
First up: The slowly-unfolding saga of the still-unidentified U.S. citizen held in military detention in Iraq. At long last, the district court will hold an actual hearing in ACLU v. Mattis, this Thursday, as a first step towards determining whether the ACLU even has standing to seek habeas review on John Doe's behalf.
Next: Off to the Supreme Court we go! As an initial matter, the Court has denied cert. in Jaber v. United States, letting stand a D.C. Circuit opinion finding that the political question doctrine bars adjudication of a Torture Victims Protection Act claim by relatives of Yemeni victims of an alleged American airstrike. Then we have a preview of Carpen…
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Nov 15, 2017
Episode 46: The $15 Million Dollar Man
In this week's episode, your devoted hosts dig into a bonanza of national security law odds-and-ends.
First up is an en banc decision by the Foreign Intelligence Surveillance Court of Review involving the standing of the ACLU and the Yale Media Freedom and Information Access Clinic to litigate a claimed First Amendment right of public access in relation to FISC opinions. This may not go anywhere in the end, but it's definitely going to go further than the government wanted.
Next comes the confusion surrounding a Justice Department letter indicating at least some willingness to dig into the Uranium One story and other related matters, which set the Twitterverse ablaze with concern recently. A new special counsel? Your hosts say: don't bet on it.
After that the show takes up the National Defense Authorization Act for Fiscal Year 2018, which should be signed into law soon. It has the usual GTMO transfer provisions (albeit with something that might be an interesting wrinkle), alon…
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Nov 7, 2017
Episode 45: An Inter-Jurisdictional Cluster-You-Know-What?
Has it only been a week? Yeesh. Well, we are back! In this episode, Professors Vladeck and Chesney focus on three topics:
The Mueller investigation and the prospect that Mike Flynn may be charged under the Foreign Agents Registration Act.
The increasingly-complex saga of the withdrawn defense lawyers in the al-Nashiri military commission case at GTMO. Habeas petitions are sprouting all over the place, and the procedural complexity of the situation is growing by the day.
An interesting legal and policy question is lurking out there: The use of the "hybrid model" (that is, military capture and initial interrogation, followed by long-term disposition via the civilian criminal justice system) in the Mustafa al-Imam case generated no complaints from the right, whereas the decision to use the civilian criminal justice system for Saipov certainly did. This highlights the fact that we have a comparatively stable system blending military and criminal law enforcement tools for…
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Nov 1, 2017
Episode 44: Interrogation, Prosecution, and Detention Issues in the Wake of the NYC Attack
We are back, one day after dropping episode 43, with an emergency podcast discussion the legal consequences of the horrific attack that occurred in New York City yesterday. The need for the podcast flows from the President Trump's statements to the press today regarding the possibility of taking the perpetrator to Guantanamo, his criticisms of the criminal justice process, and statements from Senator Graham emphasizing the need to interrogate the perpetrator without counsel. Meanwhile, a military commission judge has held the JAG General who heads the defense operation there in contempt, confining him to quarters based on an episode in which the civilian defense team for al-Nashiri has withdrawn with his approval. It's a complicated situation all around, but Professors Chesney and Vladeck are here to walk through it all in this special episode.
Of course, they couldn't help but add on, at the end, their views of the just-released AP Top 25 for college basketball...
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Oct 31, 2017
Episode 43: Unseal this Podcast!
It's been a busy week in national security law! In Episode 43, Professors Chesney and Vladeck take on:
Mueller-Time: Indictments against Manafort and Gates, and an even-more important plea deal.
ACLU v. Mattis and the government's filing in opposition to an order to show cause why ACLU should not get access to the US citizen held as an enemy combatant in Iraq.
A new Benghazi case: United States v. Mustafa al-Imam, captured by US forces in Libya (with Libyan government permission/involvement) and now en route (slowly, presumably) back to US for civilian criminal prosecution.
A quick note on the Senate Foreign Relations Committee's hearing yesterday on AUMF issues (plus a related note on the federal statute -- 18 USC 130f -- that requires notification to the Senate and House Armed Services Committees when the military conducts (or supports a foreign partner on) a kill/capture mission outside a zone of active hostilities).
The blow-up in the al Nashiri military commission, wi…
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Oct 24, 2017
Episode 42: The Magic Bullet Travel Ban(d)
This week Professors Chesney and Vladeck start with a close look at Smith v. Trump, a case that seeks a judicial ruling on whether the Islamic State really falls within the scope of the 2001 AUMF. The case presents standing and political-question doctrine issues, and will be argued soon before the D.C. Circuit Court of Appeals. This leads into an update on ACLU v. Mattis (the attempt by ACLU to represent the still-unidentified US citizen held as an enemy combatant), as the court has issued an order to show cause (due Monday) why the government should not allow access-to-counsel at this stage. This is followed by an update on the Travel Ban litigation (giving rise to the title of this episode), and after that the upcoming Bowe Bergdahl sentencing (and, more to the point, the combination of Presidential commentary on the case and a statement from the White House emphasizing the importance of avoiding unlawful command influence). At that point, your hosts come back to AUMF-type issu…
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Oct 17, 2017
Episode 41: Han Shot First
If you were unsure about whether your hosts are geeks, this episode will help settle the question. But before we get to what Professors Chesney and Vladeck think they know but don't really, here's the stuff they actually do know something about!
First, the Travel Ban. Buckle up, there's a new nationwide TRO, out of Hawaii, enjoining enforcement of most of Travel Ban 3.0.
Second, a double-shot of the Nashiri military commissions case. The Supreme Court denied cert., seemingly paving the way for that case to roll forward. But not so fast--all the civilian defense attorneys, including their death-penalty expert, have just quit, citing ethical quandaries arising from alleged government surveillance of attorney-client communications.
Third, and speaking of surveillance, the Supreme Court did grant cert. in the Microsoft-Ireland spat, which raises the question whether a "(d) order" under the Stored Communications Act can compel a company in the U.S. to produce data that is wi…
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Oct 10, 2017
Episode 40: It’s a Conspiracy
In this week's episode, Professors Chesney and Vladeck zero in on four recent developments involving law and national security.
First, they explore the Supreme Court's decision not to review the splintered decision of the en banc D.C. Circuit in Bahlul (in which a plurality of the Circuit concluded that it was constitutional for Congress to give military commissions the capacity to adjudicate a conspiracy charge, notwithstanding the government's concession that conspiracy standing alone was not a violation of the international laws of war). They consider what this means for the commissions going forward, whether the rationale of the en banc ruling is binding or merely persuasive, and what if anything this portends for the still-pending Nashiri cert. petition.
Second, they dig into the habeas corpus petition that the ACLU has filed on behalf of the still-unnamed U.S. citizen held by the U.S. military as an enemy combatant in Iraq. They grapple with the larger significance of the…
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Oct 4, 2017
Episode 39: It Is More Likely Than Not That Our FARRA Discussion Will Bore You
If you have ever wondered what statutes, constitutional principles, and judicial precedents come into play when the U.S. government contemplates transferring an American citizen from our military custody to the custody of another government, this is the episode for you.
Building off news reports that the Trump administration is contemplating sending the as-yet-unnamed US citizen enemy combatant to Iraqi custody in order to face prosecution there, Professors Chesney and Vladeck spend much of this episode exploring the ins-and-outs of the legal issues that might arise in that case. They focus in particular on the non refoulement issue, with special attention to the Supreme Court's 2008 Munaf v. Geren ruling as well as a statute known as FARRA.
They precede that discussion with news that the Supreme Court has agreed to hear Steve's cases involving military officers appointed to civilian office (see here for more), and they follow it with an extended review of the extremely-interes…
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Sep 27, 2017
Episode 38: How Did We Get Through This One Without Saying “Posse Comitatus”?
Seriously, how did they manage not to say "posse comitatus" during this episode? Sigh. In this week's episode, Professors Vladeck and Chesney do talk at length about various legal issues raised by the devastation in Puerto Rico, including the possibility of an Insurrection Act invocation. In addition, they renew attention to the as-yet-unnamed U.S. citizen who apparently remains in U.S. military custody as an enemy combatant in Syria or Iraq, urging the media to keep a focus on this important situation. On a related note, they also explore the significance of the Trump administration's potential revisions to the Obama-era policy guidance regarding the use of lethal force outside of areas of "active hostilities." From there, they pivot to a review of the special birthday party the Senate Judiciary Committee through to celebrate Steve's birthday yesterday, which took the form of a hearing on the constitutionality and desirability of a pair of bills that would help to further in…
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Sep 19, 2017
Episode 37: Enemy Combatants, Agents of Foreign Powers
In this week's episode, Professors Chesney and Vladeck explore three big national security law developments from the past few days.
First up: the news that the FISC, on two separate occasions, issued orders authorizing surveillance of Paul Manafort's communications.
Second: the news late last week that an as-yet-unnamed American citizen fighting for the Islamic State in Syria is now in US military custody and being held as an enemy combatant.
And third: an update on the travel-ban litigation as it moves into the Supreme Court.
All this, plus a random smattering of frivolous commentary on everything from the UT-USC game to the new Star Trek series. (I know, I know, but they just insist on that stuff...don't let it deter you from listening to the parts of the show when they actually know what they are talking about)!
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Sep 14, 2017
Episode 36: NSA General Counsel Glenn Gerstell on Section 702
We have a special treat in this off-cycle episode! NSA GC Glenn Gerstell is in Austin to speak to our students here at UT, and (no doubt against his better judgment) he agreed to sit for an interview with Professors Chesney and Vladeck. The conversation focuses in particular on the nature, operation, and criticisms of Section 702 collection authority. As you probably know, Section 702 is scheduled to expire at the end of December, and there is certain to be a fascinating, high-stakes Congressional fight over its renewal in the months ahead. Tune in for our discussion of targeting, minimization, "backdoor" searches, database queries, masking, unmasking, and many other key elements in the debate!
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Sep 12, 2017
Episode 35: Will This Be the Year of Military Courts at the Supreme Court?
Will this year's Supreme Court term be packed with cases relating to military courts? In this week's show, Professors Chesney and Vladeck explore the possibility. The Supreme Court currently has before it an array of petitions for review involving military court questions. The Bahlul litigation presents a complex but deeply-important set of questions relating to the ability of the military commission system to adjudicate conspiracy charges, intermixed with procedural questions about the standard of review should the Court choose to get involved. The Nashiri litigation, for its part, ultimately presents the critical question of whether an armed conflict existed with al Qaeda pre-9/11, and the Supreme Court currently must determine whether that issue should be resolved pre-trial or if, instead, the process must unfold through trial first. And then there a mix of cases, including a large group of servicemembers who were convicted by court martial, presenting the question whether…
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Sep 5, 2017
Episode 34: January 2019 as the Start of the 9/11 Trial: Over/Under?
In today's episode, Professors Chesney and Vladeck spend time with three legal topics (before spiraling off into some ill-informed commentary on the college football season). First, building off a report that FBI arrests of Islamic State supporters inside the US have declined significantly recently, they discuss why such a change may have occurred and what it signifies for the role of law enforcement in counterterrorism policy. Second, they check in on the progress (ahem) of the pre-trial proceedings in the military commission case involving the 9/11 conspiracy. The trial judge recently offered January 2019 as a trial date trial balloon, which leads your hosts into an extended discussion of the odds of that happening--and the many complications that factor into that question. Third, on the theory that decisions to enforce or not enforce various aspects of immigration law pertain to the larger topic of presidential power, they dive deep into the DACA controversy. If you are look…
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Aug 30, 2017
Episode 33: How About a Presidential Pardon…For This Episode
In this week's episode, Professors Chesney and Vladeck take advantage of a relatively quiet week for national security law developments in order to range across a number of topics. Being in Texas, we are all quite focused on the terrible tragedy unfolding thanks to Hurricane Harvey, and so your hosts open with a survey of various legal issues that could have arisen in the context of this emergency (though, fortunately, none seem to have). Then, noting that today was the first day of class at Texas Law, they discuss whether their respective Constitutional Law courses will or should be different this year in light of controversies associated with President Trump. They also take note of the latest North Korean missile launch and use that as a basis for discussion the line between self-defense and offense--in relation to Japanese law. And they also comment on the surprise settlement in the case brought against the private sector psychologists who designed the CIA's Enhanced Interrogati…
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Aug 22, 2017
Episode 32: Back to the Future…of Afghanistan and GTMO?
Never a dull moment in 2017. In this week's episode, Professors Vladeck and Chesney take on four topics (well, four relevant topics...do try to stay with them past their musings on home runs at the Little League World Series). First, they unpack the part of President Trump's Afghanistan speech in which he promised to loosen "rules of engagement," construing it as a pledge to further relax Obama administration policies regarding the scope of permitted targets in Afghanistan, the permissible roles for U.S. ground forces, and the range of situations in which permission must be obtained from POTUS or SecDef. They place those possible changes in context with similar adjustments in 2014 and 2016, and discuss their implications for the AUMF debate as well. Second, they note a report (by Charlie Savage and Adam Goldman) in the New York Times to the effect that President Trump is drawing close to signing a new executive order on the fate of Guantanamo (and, indeed, that he nearly si…
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Aug 16, 2017
Episode 31: We Were Not Mirandized Until Halfway Through This Podcast
In this week's episode, Professors Chesney and Vladeck make a whole series of blatantly un-Mirandized statements about some of the latest national security law developments. First, they take up a number of questions relating to the events in Charlottesville. Was the murder an act of "domestic terrorism"? What does federal criminal law have to say about domestic terrorism? How does this situation compare to Monday's news of a man in Oklahoma City who sought to set off a bomb ala Timothy McVeigh? And what issues arise when heavily-armed self-styled militias take to the streets in these settings? Second, they give a quick review of the controversial search warrant issued by a judge in Washington, DC, to the web hosting service Dreamhost (seeking information about visitors to a website that helped organize protests that turned violent during the Trump inauguration). And third, they explore a brand-new opinion from the district court in United States v. Abu Khatallah. That case…
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Aug 8, 2017
Episode 30: Don’t Pop the Accountability Champagne Quite Yet
In this bizarrely-titled episode (ok, they pretty much all have bizarre titles, Professors Vladeck and Chesney take on four national security law developments from the past week. First, they explore the district court ruling in Salim v. Mitchell, in which the court rejects cross-motions for summary judgment in an Alien Tort Statute suit brought by former CIA detainees against the two psychologists who designed and helped implement the "enhanced interrogation techniques" program. Second, they unpack the meaning and significance of last week's press observation held by Attorney General Sessions, in which he warned that DOJ and FBI will be ramping up their anti-leak efforts (of course the real lesson for reporters from this whole episode is: probably better not to call these professors, lest they talk your ear off about Game of Thrones). Third, they offer some preliminary thoughts on the legal issues that will arise if the US does begin using airstrikes against Islamic State target…
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Aug 1, 2017
Episode 29: Military Commissions, Military Officers in the Cabinet, the Laws of War, and More
This week's episode certainly has a military theme. Professors Chesney and Vladeck start off with a surprisingly (or is it disturbingly?) lengthy discussion of the writ of mandamus litigation currently pending in the D.C. Circuit Court of Appeals in connection with military commission proceedings. It's like sitting in a Fed Courts class, except with worse jokes (doesn't matter who your professor is, she or he surely was funnier than this). Then again, the topic turns out to be rather important for the larger questions surrounding the ability of the military commission system to move forward, so maybe it's worth it. Maybe. Stick around, though, and you'll be treated (again, probably not the right word) to an overview of the IHL/LOAC issues that were on the table at the recent Transatlantic Dialogue on International Law and Armed Conflict, which will give you a bit of perspective on the sort of questions that law of war experts think are especially interesting these days. That'…
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Jul 25, 2017
Episode 28: The North Remembers…the Federal Vacancies Reform Act of 1998???
In this week's episode, Professors Chesney and Vladeck focus on two subjects: the extradition of Ali Damache and what it might portend for Trump administration counterterrorism policy, and the slate of issues surrounding the potential removal of Attorney General Sessions. The Damache case is interesting on its own terms in light of the underlying crime (a plot to kill the Swedish artist Lars Vilk, including the recruitment of three Americans to the conspiracy), and also because Ireland previously refused extradition of Damache on the ground that he would likely end up in the SuperMax in Colorado and there experience inhuman and degrading treatment (in the form of prolonged solitary confinement). Spain had no such qualms, and now Damache faces charges in Philadelphia. Meanwhile, speculation is mounting that President Trump is eager for Attorney General Jeff Sessions to resign, and that Sessions might be fired if he won't go of his own accord. Your hosts walk through the three major…
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Jul 17, 2017
Episode 27: The AUMF: All You Ever Wanted to Know (and Plenty You Didn’t)
Want a thorough backgrounder on the 2001 Authorization for Use of Military Force? This is the episode for you. (This also is the episode for you if what you want, instead, is an hour of legal blather followed by five minutes of speculation about Season 7 of Game of Thrones). The "AUMF" is the key statute on which the government relies for its post-9/11 uses of force relating to terrorism, and it has been the source of controversy and debate for the better part of the past sixteen years. This week's episode focuses exclusively on it. Professors Vladeck and Chesney first explain how it fits into larger legal debates about the separation of powers in our system. Next, they review some of the key historical developments leading to its passage. Then they describe the fight in September 2001 over how broad it ought to be. Then they talk about key legal rulings construing its scope in the years that followed. Then they talk about how the evolving circumstances of counterterrorism--…
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Jul 11, 2017
Episode 26: The Impenetrable Podcast Unit
In today's episode, Professors Chesney and Vladeck focus on three sets of issues. First, they explore the D.C. Circuit's June 30th ruling in Jaber v. United States, in which the court on political question grounds affirmed dismissal of a suit seeking damages in relation to a 2012 drone strike in Yemen. If you are into the political question doctrine, well, that's kind of scary but the important thing is that you'll enjoy the discussion. If you don't enjoy getting into the legal weeds of justiciability, that probably reflects well on you but you will hate this part of the episode. Moving on... Next, your hosts debate the criminal law implications of recent revelations about a meeting between a Russian lawyer and Donald Trump, Jr. (as well as Paul Manafort and Jared Kushner), involving an expected offer by the Russian to give derogatory information about the Clinton campaign. Did it violate campaign finance laws? Is the real legal story here about failing to disclose the conv…
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Jun 28, 2017
Episode 25: So Much National Security Law News…We’ve Reached Our Limitrophe
Had you seen the word "limitrophe" before Justice Breyer used it in his dissent in Herndandez v. Mesa? Neither had Professors Vladeck and Chesney, but that doesn't stop them from exploring the Supreme Court's action in that cross-border shooting case, with its implications for Bivens, qualified immunity, and the extraterritorial application of the Fourth Amendment. Nor does Travel Ban fatigue stop them from unpacking all the details in Trump v. IRAP, the Supreme Court's per curiam ruling partially lifting the nationwide preliminary injunctions involving President Trump's travel-ban order. Completing the SCOTUS trifecta, your hosts also flag the cert. grant in a case involving Persian antiquities given to Indiana Jones in the 1930s...well, sort of, you have to listen to find out what that's all about. In the back half of the episode, discussion turns to the sudden appearance of military commission charges against Hambali, the GTMO implications of a recent story about SOF m…
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Jun 20, 2017
Episode 24: An AUMF for Westeros?
In today's episode, Professors Chesney and Vladeck discuss the Supreme Court's decision in Ziglar v. Abbasi in more detail than you could possibly want. What's that one even about, you ask?Damages for alleged violations of the Constitution arising out of the massive post-9/11 immigration sweep. Let's just say it was not a good result for the plaintiffs, nor for fans of Bivens doctrine (poor Steve!). Next comes both an international law and domestic law analysis of the episode on Sunday when a US aircraft shot down a Syrian Air Force jet. How does the unwilling/unable doctrine match up with the right of a sovereign government to use force against a non-state actor rebelling against it, where that non-state actor is also engaged in coalition operations against the Islamic State? And does either the 2001 AUMF or Article II carry with it authority to defend coalition partners? Finally, there is an update on the Travel Ban litigation, followed by a spoiler-laden, rambling dissec…
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Jun 13, 2017
Episode 23: She Could Be the Ruckelshaus to Rosenstein’s Richardson
In this episode, Professors Vladeck and Chesney come up with a tongue-twister of a title while exploring the legal fallout from the Comey testimony last week, including discussions of (1) whether Comey's actions were illegal (hint: they weren't), (2) whether executive privilege attached to his conversations with Donald Trump (hint: not really), and (3) what would it look like if the president decides to try to fire Bob Mueller--or even abolish the office of the special counsel. Your hosts also find time to talk about the recent arrest of two Hezbollah operatives inside the United States (with commentary on the role the material support statute plays in such cases), a recent airstrike in Somalia that DOD says took place under color of the recent policy decision to categorize Somalia as an area of active combat operations, a new bill from the House Armed Services Committee that would require DOD to give notice to HASC and SASC when conducting certain offensive (or active defense) cyber…
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Jun 6, 2017
Episode 22: A Dose of Reality
In this episode, Professors Chesney and Vladeck have a full plate. The arrest of a contractor named Reality Winner (for having stolen classified information relating to Russian efforts to hack a voting-machine system and providing that information to the Intercept) provides the basis for a wide-ranging conversation about the Espionage Act, the First Amendment, and associated policy and legal issues. Naturally this also leads to previews of Jim Comey's upcoming Congressional testimony, discussion of Jared Kuschner's attempt to establish a communications channel with Moscow using Russian government channels, and notes on the latest developments with Mike Flynn. That in turn leads to a detailed assessment of the prospects for the Supreme Court to take review of the Fourth Circuit's Travel Ban ruling and to stay the various injunctions associated with the Travel Ban (the government having recently filed applications relating to all of this). But they save the best for last: the…
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May 31, 2017
Episode 21: A Military Commissions Deep Dive
This episode is a bit different than normal. Instead of tearing through the latest developments in the wide world of national security law, Professors Vladeck and Chesney instead provide a deep-dive overview of military commissions. The explain what that label does and does not refer to, survey the pre-9/11 history (with an emphasis on key Supreme Court decisions like Ex parte Milligan and Ex parte Quirin), identify the key issues raised by the military commission system established after 9/11, track how those issues evolved over time (as the executive branch tinkered with the rules, as the courts weighed in, and as Congress ultimately intervened in 2006 and 2009), and review the state of currently-pending litigation challenging today's system. If you've been looking for a short-and-sweet way to understand what all the fuss is about, this is the episode for you!
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May 25, 2017
Episode 20: The Executive Branch’s Terrible, Horrible, No Good Very Bad Week in Court
It has only been a few days since Episode 19, but Steve and Bobby are worried that fellow national security law geeks won't have enough @nslpodcast to enjoy during long Memorial Day Weekend roadtrips. That, plus they want to make sure you are up to speed on two big new rulings by the Fourth Circuit Court of Appeals, both of which went against the Executive Branch. First, the en banc Fourth Circuit today issued IRAP v. Trump, in which a majority of the Court agreed to uphold the nationwide injunction a trial judge had issued against the second version of the Trump Administration's immigration-related executive order (the decision focuses on the Establishment Clause challenge). Second, a Fourth Circuit panel on Tuesday ruled in Wikimedia Foundation v. NSA/CSS that Wikimedia pled sufficient facts to survive the government's motion to dismiss on standing grounds, in connection with a suit that challenges the Section 702 Upstream collection program on Fourth Amendment grounds.…
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May 22, 2017
Episode 19: Inherent Contempt Works Better With a Congressional Jail
School's out for summer...but the National Security Law Podcast keeps trucking along. In Episode 19, we find that the suddenly-student-less professors have used their newfound free time to...wait for it...add music to their intro. And just in case that brief riff is not enough, Chesney and Vladeck do go on to discuss some actual law and policy matters. They start with the appointment of Bob Mueller as a "special counsel," and go into considerable detail on the nature and origins of that particular office (contrasting it with the more-familiar "Independent Counsel" of Whitewater fame). This leads, inevitably, to a discussion of Mike Flynn invoking the Fifth Amendment in relation to a congressional subpoena for documents (from the Senate Select Committee on Intelligence). Among other things, they survey SSCI's options for enforcement of its subpoena, noting along the way that the "inherent contempt" power is less fun without ye' old Capitol Jail (converted into a dining hall,…
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May 15, 2017
Episode 18: Disclosing Secrets to the Russians Makes Me WannaCry
The guys came back to the office tonight for a rare evening recording session, inspired by a combination of hot-off-the-presses news about the president talking out of turn to the Russians, lack of interest in the Wizards-Celtics game, and a general inability to find another time to record this week. And what's in it for you? An extended discussion of the significance of the report earlier this evening to the effect that President Trump may have shared highly-sensitive classified information with his Russian guests in the Oval Office last week, some follow-up discussion of the Comey firing (with an emphasis on the situation of Rod Rosenstein), an update on the litigation challenging the executive order on immigration, a review of the problems associated with the rapidly-spreading WannaCry ransomware, an attempt by Bobby to steer the conversation away from Spurs-Warriors Game 1 in favor of Spurs-Rockets Game 6 (quickly rebuffed by Steve), and a trivia question for those who manage t…
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May 10, 2017
Episode 17: On the Firing of Jim Comey
Yes Episode 16 just dropped yesterday, but given the firing of Jim Comey we felt duty bound to get back to the microphones ASAP. And so here you will find Bobby and Steve reviewing and debating the legal and policy backdrop to, and fallout, from yesterday's shocking news. Tune in for a discussion that covers the power of the president to appoint and remove the FBI Director, the implications of the firing for a variety of ongoing investigations, and much more.
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May 9, 2017
Episode 16: Authorizing Force Against the Islamic State
In this episode, Professors Vladeck and Chesney walk listeners through a recent proposal by Rep. Adam Schiff to replace the 2001 and 2002 AUMFs with a new "consolidated" AUMF that would explicitly name the Islamic State while also tweaking current authorities in certain interesting ways. Before that, however, they find plenty of time to argue about the significance of the latest twists and turns involving Sally Yates, Mike Flynn, and Jim Comey, and to forecast the next steps in the unfolding litigation surrounding the Executive Order on immigration. The episode also checks in with some recent developments involving ground forces in Somalia and Afghanistan, not to mention the National Emergencies Act and its application in Syria, Yemen, and Central African Republic. But all that is mere prelude, of course, to an extended appreciation for the music of the Indigo Girls. The episode may not be Closer to Fine, but hopefully you'll enjoy it nonetheless. And if you do, please rate…
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May 3, 2017
Episode 15: Skirmishes in the Surveillance Wars
In this surveillance-heavy episode, Professors Chesney and Vladeck dig into a raft of news about foreign-intelligence collection authorities. They open with an overview of how Section 702 collection authority works, and then unpack the recent news that NSA is dropping the "about" collection component of Upstream collection under 702. They explain it all, including the obvious and perhaps not-so-obvious reasons for this development. This leads them next to the ODNI's 2016 Transparency Report, which just dropped and provides a host of fascinating data points about not only 702 but an array of other surveillance/collection authorities. Stay tuned to here them try to convince you that 150 million is not actually a big number! As your reward, you'll then get a breakdown of an array of recent and looming Supreme Court developments (cell-site data, anyone?), and a wrap-up segment that only Val Kilmer could love.
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Apr 25, 2017
Episode 14: Potential Assange Charges, and More From Some Island in the Pacific
In this episode, Professors Chesney and Vladeck run through the array of potential criminal charges against Julian Assange and Wikileaks (in light of recent rumblings that DOJ has revived that possibility), and they discuss the prospects for the First Amendment objections that would surely follow. This leads into a discussion of the charges that Mike Flynn one day might face, and that in turn prompts a disagreement about what to make of the White House letter rebuffing requests for information submitted by the House Government Oversight Committee. In other news, the Supreme Court denied cert. in connection with the ACLU attempt to use FOIA to acquire a complete copy of the SSCI interrogation investigative report (aka the "Torture Report"); the Administrative Office for the U.S. Courts released a surprising statistic about applications under Section 702 (with implications for the inquorate PCLOB); a news alert triggers an impromptu discussion of the intersection of conditional spendi…
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Apr 19, 2017
Episode 13: This Podcast Did Not Go Through the VEP But We Are Releasing It Anyway
Listeners who are tired of listening to just Professors Vladeck and Chesney on this show can take heart! This week they are joined by special guest Matt Tait, better known online as Pwn All the Things. Matt's presence leads to an extended discussion of the Shadowbrokers dump of exploits allegedly stolen from NSA, the US government's Vulnerabilities Equities Process, and much more. Meanwhile, there's a lot happening in the realm of immigration, with a denial of cert regarding a key Third Circuit case (Castro) and the first publicly-reported deportation in a DACA situation. Steve and Bobby also take note that the SOF mission in Uganda--hunting Kony and the Lord's Resistance Army for the past five years, and setting off important War Powers Resolution issues early on--recently came to an end. Finally: if you wondered which team Steve roots for in the English Premier League, you have to listen all the way through till the end.
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Apr 11, 2017
Episode 12: R2P From Above? The Shayrat Airfield Strike and More
In this episode, Professors Chesney and Vladeck go deep into the weeds regarding the legal issues raised by President Trump's decision to launch missiles at the Shayrat Airfield in Syria, in the wake of the sarin gas attack in Idlib. They discuss that decision in comparison to the 2011 decision by President Obama to use airstrikes in Libya, and along the way grapple with separation of war powers issues, AUMFs, the UN Charter, and the Responsibility to Protect (R2P). After that extensive discussion, they turn their attention to the controversial (and quickly defeated) attempt by Customs and Border Protection to force Twitter to reveal the identity of the user behind @ALT_USCIS (a mock-account that has been critical of administration immigration policy), and they explore the Third Circuit's Castro decision on the ability of non-citizens to invoke habeas jurisdiction when they are present inside the United States but without authorization (since the Supreme Court will be considering…
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Apr 5, 2017
Episode 11: All of This Has Happened Before, and Will Happen Again
In today's episode, Professors Vladeck and Chesney come to grips yet again with surveillance law and policy issues thanks to the ever-fascinating Trump/Russia story, this time accounting for the President's accusation that then-National Security Advisor Susan Rice committed a crime. After droning on and on about targeting, minimization, incidental collection, masking, unmasking, and leaking, the professors pivot briefly to Jim Comey's secret Twitter account and also the removal of Steve Bannon from the list of NSC participants (neither of those stories are really national security *law* stories, they are quick to admit, but you get what you pay for...). From there it's back to Guantanamo, where the Court of Military Commission Review has hinted that it might not proceed to adjudicate a former detainee's appeal from a conviction given that the fellow is now in the field with AQAP. That's followed by a discussion of a new D.C. Circuit opinion on the right of the public to see videot…
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Mar 29, 2017
Episode 10: Is This Podcast Cert-Worthy?
In this hour-long episode, Professors Steve Vladeck and Bobby Chesney open by unpacking the ins-and-outs of two Guantanamo military commissions cases currently seeking Supreme Court review: the al-Nashiri case (which could give the Court a chance to determine whether an armed conflict existed with al Qaeda prior to 9/11) and Bahlul (which could give the Court a chance to settle, at long last, whether the commissions can adjudicate offenses that do not count as violations of the law of armed conflict). Well, actually, they open by admitting how bad their NCAA brackets turned out to be. But nevermind that. After the military commission stuff, they go on to describe an interesting development at the FISC regarding the standing of the ACLU, and they explain the doctrinal rules surrounding executive privilege claims in light of the dispute between Sally Yates and the Trump White House regarding her prospective testimony about Mike Flynn. They also find time to address the impact of…
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Mar 24, 2017
Episode 9: [USperson 1] and [USperson 2] Discuss [Redacted]
In this episode, [USperson 1] and [USperson 2] discuss whether the law was violated by [USperson 3] when [he/she] spoke to [USpersons 4-17] about alleged surveillance of [USperson 18] or perhaps various [USpersons] working for [USperson 18]'s campaign. They also discuss the appearance at [USuniversity 1] by [USperson 19] in which [he/she] did not talk about [USperson 18], but did have lots of interesting stuff to say about the "going dark" debate. [USperson 1] and [USperson 2] also dig into the question of denaturalization of convicted terrorists, and whether this portends an uptick in such efforts or even an eventual move towards actual expatriation legislation for such cases. Finally, they manage to talk about Ed Sheeran, Game of Thrones, and the impending return of [USperson 20's] show VEEP, in which art increasingly imitates life.
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Mar 17, 2017
Episode 8: March Madness
Episode 8 (about 58 minutes long) finds Professors Vladeck and Chesney discussing the legal, policy, and institutional issues raised by reports that President Trump has authorized CIA to resume control of drone operations in some circumstances, and that he also has added certain parts of Yemen and Somalia to the current list of zones of active hostilities. They also provide an update on litigation relating to the revised refugee/travel executive order. In addition, they take up the topic of "proxy detention" of terrorism suspects, fleshing out the concept and its legal implications. From there they talk about a recent jury conviction of an al Qaeda member, a person whose circumstances might have left him prosecuted instead by a military commission had he been captured earlier (and had Italy not insisted on precluding such a result, as a condition of extraditing the defendant). Last but not least, they note (but don't get terribly exercised by) the release of security-related m…
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Mar 8, 2017
Episode 7: The Less Prep the Better
In this episode, Professors Chesney and Vladeck live up to their new motto (see the episode title) by wading into the confusion surrounding a pair of recent presidential claims with significant national security law implications: President Trump's claim that the Obama administration wiretapped him (or his campaign), and his allegation about the "GTMO recidivism" rate as between the Bush and Obama administrations. This in turn leads to a discussion of the "Vault7" dump by Wikileaks of information on CIA tools for accessing iPhones, Android devices, and so forth, and from there they discuss the new immigration executive order as well (disagreeing as to its litigation prospects). With time running short, they move on to a lightning round touching on the draft Active Cyber Defense Certainty Act (that's right, it's the "AC/DC Act"), and an important but little-noticed military commission ruling that seems likely to result in four CIA officers having to testify about the interrogation of…
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Mar 2, 2017
Episode 6: A Sessions Session
In this episode, Professors Vladeck and Chesney get into the weeds of the controversy surrounding the statements Attorney General Sessions made during his confirmation process concerning contacts with Russians. Is there a credible case for perjury here? They don't seem to agree, but you'll have to listen to find out where they part ways. They also foreshadow future discussions regarding the debate that will occur this year regarding "Section 702" renewal, as well as the Privacy and Civil Liberties Oversight Board. As usual, things come apart at the end, especially when Game of Thrones enters the picture.
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Feb 21, 2017
Episode 5: Does this Podcast Apply Extraterritorially?
In this episode, Professors Chesney and Vladeck consider whether the Supreme Court is poised to use a border-shooting case (Hernandez v. Mesa) to expand Fourth or Fifth Amendment rights for non-citizens outside the United States, and what this might mean for other scenarios ranging from drone strikes to SIGINT collection and network investigative techniques the FBI might use with overseas effect. They then turn their attention to the fight against the Islamic State in Mosul, exploring the evolving role of U.S. ground forces there. Next, they provide a detailed update on four sets of cases involving the military commission system. Finally, they spiral out of control (and coherence) with their views on how to improve the NBA all-star game. Seriously, guys?
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Feb 15, 2017
Episode 4: A New Hope
In this episode, Professors Vladeck and Chesney come to grips with a number of legal issues raised by the Mike Flynn story. What the heck is the Logan Act and was it perhaps violated? What about the possibility of a charge for making false statements to the FBI? Was the underlying surveillance lawful? Were minimization rules violated? What about the folks who leaked the story? After all that, the conversation swerves into a preview of the Hernandez case (which will be argued at the Supreme Court next Tuesday and presents questions about the application of the Fourth and Fifth Amendments to non-citizens outside the United States, inter alia) and a discussion of what might happen soon with respect to the Periodic Review Board process for Guantanamo detainees. At that point, the conversation goes entirely off the rails as the guys turn their attention to fantasy baseball...
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Feb 8, 2017
Episode 3: Sometimes an Executive Order Is Really Just…An Invitation to Talk about AUMFs and Habeas Corpus
In this episode, Professors Chesney and Vladeck dive deep into the latest iteration of the Trump Administration’s draft executive order on military detention, Guantanamo, and the Islamic State, a task that leads them into an extended discussion of: the legal consequences of bringing an Islamic State detainee to GTMO, the geographic reach of habeas corpus, the fuzzy caselaw on military detention applied to American citizens, and irrelevant thoughts on the greatness of the San Antonio Spurs and the sadness of Manchester By the Sea.
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Jan 31, 2017
Episode 2: If You Thought That Last Executive Order Was Controversial…
In this episode, Professors Vladeck and Chesney focus on two major developments: the Trump Administration’s sudden decision to suspend entry into the United States for persons hailing from seven countries, and a rare boots-on-the-ground raid conducted by U.S. Special Operations Forces against an AQAP compound in Yemen. They close by offering worthless Super Bowl predictions.
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Jan 25, 2017
Episode 1: What the World Needs Now Is a New Podcast
In the first episode, Professors Bobby Chesney and Steve Vladeck walk listeners through some of the key issues raised by an alleged draft executive order on interrogation, detention, and prosecution of terrorism suspects. They also find time to speculate about the playoff prospects of the New York Mets.
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