The National Security Law Podcast - Bobby Chesney and Steve Vladeck

Latest Episodes:

Episode 126: Sometimes, “Nothing” Is Important Jun 26, 2019

Show notes

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 Succession Chain: As we approach the half-year mark with only an acting SecDef, and with so many open spots and unconfirmed-but-acting officials, the succession chain is growing ever more complicated. We review the sequence of events likely to unfold with Acting Secretary Esper and others. NSD Roundup: Hey, counterterrorism prosecutions are still a thing, even if the nation's attention has wandered elsewhere. We take brief note of three recent cases. SCOTUS Roundup: Is the administrative state itself doomed, or are we just in for a bit of non-delegation doctrine revival? And if the latter, are we also eventually going to see a new Curtiss-Wright-type case? Next, let's head to...Westworld! For our frivolity, we at last are going to review Westworld Season 2. And you thought Facebook collected a lot of data...

Episode 125: Worst of Both Worlds Jun 18, 2019

Show notes

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 President's Pardon Power extending only to federal offenses) as well as some thought-provoking commentary by Justice Thomas concerning the metes and bounds of stare decisis. Hackback: We review the key moving parts in the re-introduced "AC/DC bill"--that is, the Active Cyber Defense Certainty Act--including the separate provisions on beacons and on "active cyber defense measures." Hacking the Russian Grid: We also take note of the revelation that CYBERCOM may have hacked Russia's grid in some respect, and we talk about the international law implications of that story. And, as always, there is frivolity. Let's some it up with an acronym: STTNG, and a call for listener suggestions for particular episodes for review!

Episode 124: Who’s Ron Swanson?!? Jun 13, 2019

Show notes

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 should be construed to prohibit certain forms of support to the Saudi coalition, even though the bill died thanks to a veto. We test that claim. Circumventing Constitutional Checks on the Appointments Power: Ye ol' Federal Vacancies Reform Act has some loose provisions, and we assess a recent move to take advantage of this. All this and much more...including a salute to the U.S. team at the Women's World Cup, and a discussion of the Goal Celebration Controversy...

Episode 123: Our Gym Was Named for the Espionage Act Guy??? May 28, 2019

Show notes

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 whether a Bivens damages action should exist where a federal agent is alleged to have violated the Fourth & Fifth Amendments and there is no other remedy available). NSD Roundup: Short notes on a pair of terrorism-related case developments. How Was that Not Military Activity? On the ITLOS decision concluding that Russia was not engaged in "military activities" when it fired on and seized Ukrainian vessels. But, enough about all that serious stuff. We've also got opinions about the NBA...

Episode 122: That Didn’t Fly for Buchanan… May 21, 2019

Show notes

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

Episode 121: The Persian Gulf of Tonkin May 15, 2019

Show notes

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

Episode 120: Bran, Bron, What’s the Difference? May 07, 2019

Show notes

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

Episode 119: This Podcast Is Dark and Full of Spoilers Apr 30, 2019

Show notes

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...

Episode 118: Steve Targaryen, First of His Name Apr 17, 2019

Show notes

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

Episode 117: Y’all Got Designated Apr 13, 2019

Show notes

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

Our TOPPODCAST Picks

Follow Us

Stay Connected

The National Security Law Podcast – Bobby Chesney and Steve Vladeck

Related Podcasts

Links

Stay Connected