The National Security Law Podcast - Bobby Chesney and Steve Vladeck

Latest Episodes:

Episode 96: A Deep Dive into…the Foreign Intelligence Surveillance Act Oct 25, 2018

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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.

Episode 95: Not Everybody Be DPH’ing! Oct 16, 2018

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

Episode 94: The Enemy of My Friend Is My Enemy Oct 11, 2018

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

Episode 93: Is This a Buddy Podcast? Oct 02, 2018

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

Episode 92: Have Fun Storming the Castle! Sep 26, 2018

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

Episode 91: A Deep Dive Into the History of Military Commissions Sep 18, 2018

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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!

Episode 90: What’d I Miss? Sep 13, 2018

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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).

Episode 89: A Deep Dive into the Steel Seizure Case (Youngstown Sheet & Tube v. Sawyer) Sep 04, 2018

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

Episode 88: A Deep Dive into the Anwar al-Awlaki Case(s) Aug 28, 2018

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

Episode 87: The D.C. Circuit Ain’t Inquorate Aug 21, 2018

Show notes

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

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