The National Security Law Podcast - Bobby Chesney and Steve Vladeck

Latest Episodes:

Episode 76: The Valley of Ignorance May 30, 2018

Show notes

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 President are the ability to levy sanctions and to raise tariffs for national security reasons. But just how much discretion does a president enjoy when wielding such powers? Can anyone stop a president from softening sanctions on a Chinese company, or second-guess a decision to increase tariffs on car imports? Canada and targeted killing of one's own citizens: a recently-produced government document confirming the use of lethal force in Iraq/Syria against Canadian citizens who were categorized as IS fighters is raising questions about the legal and policy architecture for the Canadian role in the armed conflict with the Islamic State. Trumplandia: Important questions of constitutional law (not to mention policy and ethics) are heating up as a result of the new zero-tolerance policy involving separation of parents from children at the border (even in cases involving asylum applicants). Meanwhile, efforts to pass legislation relating to the Mueller investigation continue to generate constitutional debate, but no signs from the leadership that a relevant bill will be brought to the floor. But never mind all that: we've also got a review of...hit songs with Cold War themes! We've got all the colors of a royal flush, and it's easy to believe that someone's gonna light the fuse (to be fair, we didn't light it but we tried to fight it). So if radio's gonna stay, then get your six-guns at your side because line morale has hit rock bottom and there's a growing feeling of hysteria! (Think you can identify all 7 of those references based *strictly* on memory (no online research please!)? Send your list to @nslpodcast, with band & song! We'll happily award you...our hearty congrats!)

Episode 75: I Hereby Demand, & Tomorrow Will Officially Order, That You Listen to This Podcast May 22, 2018

Show notes

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 has been around forever. The latest? A motion to dismiss based on the idea that the Supreme Court's recent Jesner v. Arab Bank ruling (precluding ATS liability for suits against foreign corporations involving conduct overseas) should be extended to domestic corporations for actions overseas. Oral argument on June 15. GTMO habeas cases: We also note the unfolding litigation schedules for some key GTMO cases (yes, there still are some!), including Hamidullin's bid for en banc review of his request for POW status. We also check in on the al-Alwi D.C. Circuit appeal and the various petitions grouped under al-Bihani. Trumplandia: We go deep on the Intelligence Identities Protection Act in relation to the exposure of the name of an FBI confidential informant who interacted with Trump Campaign members in 2016, and we also wrestle with the authority of a president to direct DOJ to open an investigation in a particular case. Admit it, though: You're tuning in this week for an extended debate over the criteria that define a "one-hit wonder," and to see whether your favorite songs made their good and bad one-hit lists. The question you have to ask yourself is: What do you wanna do with your life?

Episode 74: We’re Spending It On Barbecue! May 15, 2018

Show notes

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 attempt by a deployed servicemember to challenge the government's interpretation that the AUMF applies to the Islamic State. The D.C. Circuit ... nah, just kidding, three D.C. Circuit items is plenty. The next item instead is a telling comparison of two unfolding detention issues that are in the news but not the courts. First, we have an ongoing debate (within the administration and also at the diplomatic level) over what to do with the IS fighters detained by SDF in Syria (especially the European citizens). SDF won't hold these people forever--perhaps not even for long--but no clear plan has yet emerged. Meanwhile, a separate story underscores how little we really know about what happens to captured IS fighters who end up in Iraqi custody, while also noting that the United States has some form of involvement in the resulting interrogations in at least some such cases. Quick timeout to recap this week's new Supreme Court opinions (including notes on severability and on reasonable expectations of privacy). The demise of the nuclear agreement with Iran We do squeeze in a modest dose of frivolity at the end, mostly NBA-focused. But buckle up for next week--and send us your opinions in advance--as we grapple with a classic question: What are the best (or, if you prefer, worst) one-hit wonder songs?

Episode 73: The Penumbras of the Category May 08, 2018

Show notes

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 fascinating to see how the nominee handles interrogation-related questions both historical and prospective. United States v. Hamidullin: We are several weeks late with this one, alas. Well, back in April the Fourth Circuit issued a fascinating opinion refusing to extend POW status, or any other basis for combatant immunity from prosecution, to a Russian Taliban fighter who had been brought to the United States for civilian criminal trial. What to make of the ODNI statistical report? ODNI's Civil Liberties Office has released its annual report showing data on the use of various national security investigative authorities. We debate the significance of many of the key stats, including but definitely not limited to the headline-grabbing numbers associated with acquisition of call-data records under the USA Freedom Act (actually, we mostly agree that those numbers don't indicate much; the debate is more interesting regarding other stats in the report). The Lightning Round of Litigation Updates: We've got notes on (a) a possible effort by the government to show that the FISC has no jurisdiction to consider a First Amendment-based claim to compel release of FISC opinions; (b) the Navy recalling a reservist who will now be obliged to serve as the "learned counsel" in the capital case against al Nashiri; and (c) the quiet stipulated dismissal in the steel tarriff challenge brought by Severstal Export. Trumplandia: We discuss the Logan Act accusations lobbed at John Kerry, the prospect of a grand jury subpoena to the president (seeking testimony), and the recent hearing before Judge Ellis regarding the scope of the Mueller investigation and its relevance for the case against Manafort. But let's face it, the national security legal stuff can get boring after a while. If you listen to the end, it's because you appreciate the frivolity. And this week, the topic is: What are the top 1990s "teen angst" movies (and what are the qualities that define that category in the first place). We can't hardly wait to know what you think about that. As for us, we're clueless.

Episode 72: This Podcast Was Recorded Before, On, or After 9/11 May 01, 2018

Show notes

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 recommending the future course of detainee policy. No word yet on whether the deadline was met, by why let that stop us from speculating about its contents? Meanwhile, the DC Circuit held oral argument last week in Doe v. Mattis. We've got a mini-review, though no one is prepared to predict the outcome. Johnson v. CIA, in which Judge McMahon (SDNY) ruled in favor of the CIA on an interesting FOIA exemption issue involving the consequences when the government makes a selective disclosure of classified information to a journalist. The "Mueller Protection" bill has emerged from the Senate Judiciary Committee. Now it's at the part in the Schoolhouse Rock cartoon when the Bill is waiting to see if the leadership will allow a vote... And then there are the dueling HPSCI reports on Russia and the election. Perhaps the less said here the better, though there are in fact some interesting recommendations. Should the Logan Act be repealed? Do we need a new FISA "foreign power" category to cover foreign hackers who threaten national security but whose sponsorship can't be pinned down reliably? Speaking of reports, we also have some interesting data on FISC decisions thanks to the mandatory disclosure provisions of the USA Freedom Act. Tune in to understand why the data signifies something a bit different than many observers initially assumed. But wait, there's more! If you order now, we will throw in...frivolity! We kept it short this week, because Steve wants to talk Westworld (but Bobby isn't caught up) and Bobby wants to talk Avengers (but Steve hasn't seen it). Sigh. They default to the NBA...

Episode 71: Everyone Knows It Is Saudi Arabia!!! Apr 24, 2018

Show notes

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 long term. News of two former GTMO detainees who had been transferred to Senegal, but whom Senegal then sent to Libya--at which point they have disappeared. Meanwhile, another 9/11-linked individual (Mohammed al Qhatani) is seeking to use habeas jurisdiction to press for an external medical review of his circumstances. In Trumplandia, we've got heavily-hyped allegations of classified information in memos Jim Comey wrote; a sprawling lawsuit filed by the DNC against an array of defendants including Russia, the GRU, Guccifer 2.0, Julian Assange, Roger Stone, Wikileaks, Don Jr., Jared, the Trump Campaign itself, and then some. It raises some interesting Foreign Sovereign Immunities Act questions. An update on the gradual progress of the Special Counsel protection legislation, and the prospect of an interesting amendment from Senator Grassley. We also draw attention to this very handy resource mapping the reactions of various states to the US/UK/FR missile strikes against Syria. Best (or worst) of all, however, is our finale, as we have an uber-geeky breakdown of a critical doctrinal dispute, a question of categorical definition put in issue by Billboard announcing its list of 100 greatest "boy band" songs of all time. What are the necessary and sufficient conditions to qualify as that kind of band? That's all for now; bye bye bye!

(Bonus Episode) Ep.70: The Corker-Kaine AUMF Apr 17, 2018

Show notes

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!

Episode 69: Friday Was Quite a Month Apr 16, 2018

Show notes

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-awaited review of...Black Panther! (Of course, you'll also be "treated" to more celebration of the Amazin' Mets).

Episode 68: This Podcast Is Not Protected by the Attorney-Client Privilege Apr 10, 2018

Show notes

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 about to get back in the game. We preview some of the likely issues based on early reports, in anticipation of a bill going public on Thursday. Severstal Export (a subsidiary of a Russian steel company) has sued the Trump administration over its steel tariffs, urging the Court of International Trade to treat Trump's stated national security justification as a pretext for protectionism. It's a lot like the Travel Ban litigation, but Severstal has lost round 1 already (with the CIT rejecting a request for a TRO). Doe v. Mattis and the 72-hour notice-before-transfer requirement: We recap last week's oral argument, and we also wonder what is taking so long on the underlying merits dispute. The military commissions and Nashiri: things just got even more complicated, amazingly. If you stick around that long, you will be treated to an appreciation of the amazing start to the season for the Amazin' Mets (including a ranking of their starting pitchers).

Episode 67: CTRL-F Redaction Fail Apr 03, 2018

Show notes

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 litigation: an update on the first district court rulings dealing with the impact of JASTA on the suit brought by 9/11-related families vs various Saudi defendants. Oral argument preview: The DC Circuit on Thursday will hear argument in Doe v. Mattis (the US-Saudi dual-citizen held in US military custody in Iraq) regarding the detainee transfer issue. Oh, and also: a happy review of the revival of Jesus Christ Superstar, which aired Sunday night, and a critical review of the officiating in the NCAA Women's Final Four!

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The National Security Law Podcast – Bobby Chesney and Steve Vladeck

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