The National Security Law Podcast - Bobby Chesney and Steve Vladeck

Latest Episodes:

Episode 56: The State of the Uniom Is…ExStravagant! Jan 30, 2018

Show notes

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? Revelations that White House Counsel Don McGahn threatened to resign rather than convey President Trump's directive to fire Special Counsel Mueller last summer have drawn renewed attention to two pending bills that would subject such decisions--which according to DOJ regulations must be made based only on a showing of good cause--to judicial review. Would such a law be constitutional? Asking for a friend... About that GTMO closure executive order: Several times over the past year, reports circulated that the White House was prepared to issue a GTMO executive order repealing the 2009 Obama order directing GTMO's closure. It may finally happen this afternoon, in the run up to tonight's SOTU. Tune in for our predictions as to what it might entail. The location of the hidden rebel base: Anyone who watched the Last Jedi should know that sometimes it is possible to track the movement of the military in unexpected ways. Still, who would have guessed your jogging app would be the cause? We note the way Stravagate might inflect perceptions about larger issues involving metadata and third-party data (where is that Carpenter decision, anyway?). That's more than enough, but if you want to hear thinly-reasoned takes on the Grammy's, by all means listen until the end! You go, Gary Clark Jr.!

Episode 55: #ReleaseThePodcast Jan 23, 2018

Show notes

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 temporary grant of authority to the executive branch to reprogram intelligence appropriations? As for the usual frivolity: Your hosts were committed to getting the show under one hour this week...and, anyway, they couldn't think of anything fun for their final segment. Unfortunately, this seems to have encouraged them to digress at unpredictable times during the core program to an even greater extent than normal. Bear with them, it'll be worth it!

Ep. 54: Family Ties or Family Matters? Jan 17, 2018

Show notes

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 Amendments Reform Act - The Section 702 renewal drama is nearing its end. Last week President Trump quietly directed DNI Coats to introduce IC-wide rules on "unmasking," and he duly complied on Thursday (including rules specific to unmasking of USP identities involving members of presidential transition teams, naturally). Who knows whether that helped pave the way for the Section 702 renewal bill, but it certainly didn't hurt. At any rate, the FISA Amendments Act has now overcome a Senate filibuster, and should pass later this week and become law at some point thereafter. We wrap this week's episode, therefore, with an initial close-read of Section 101 of the Act, which imposes a warrant requirement on FBI access to the fruits of 702 collection involving queries using US person identifiers. Suffice to say: it's complicated. For better or worse, Bobby and Steve continue to insist on ending the show on a lighter note. This week's frivolity? Best. Sitcoms. Ever.

Episode 53: Tanks, Bombs, Bombs, and Guns Jan 09, 2018

Show notes

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 making his first appearance arguing before the Supreme Court of the United States, in Dalmazzi. Your hosts will explore the larger significance of the case, and then talk through a late-developing aspect of the case: whether it presents a classic Marbury v. Madison problem? FISA: As happens every week of late, the substantive portion of the show wraps with a review of what's happening in relation to surveillance law, as we continue to await the results of Congressional sausage-making in relation to renewal of Section 702. This week, the check-in includes not only notes on where 702 renewal stands, but also news about the Supreme Court denying certiorari in a Ninth Circuit case involving the use of 702 fruits in a criminal trial, and a decision by the FISC to certify to the FISA Court of Review an en banc FISC decision recognizing ACLU's standing to seek disclosure of certain FISC opinions. Whew! Of course, the good professors can't leave well enough alone, so for those who are gluttons for punishment you'll be treated at the end to discordant thoughts on: the riff-off in Pitch Perfect 3, the Golden Globes (both the awards, and the #MeToo overhang), and the likely outcomes in this weekend's NFL playoff games. If there's ever a Golden Globe for podcast episodes, don't hold out hope for this one!

Episode 52: Trump Derangement Syndrome or a Distraction from the Forever War? Jan 03, 2018

Show notes

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 attention from those of us engage publicly on national security legal issues. But not everyone agrees that the latter is a good thing. Some argue that it distracts too much from core issues associated with the use of force and other aspects of counterterrorism and military affairs, while others argue that it reflects an unjustified obsession with and hostility towards Donald Trump. We wrestle with those critiques. Last (and no doubt least), we have at last both managed to see Star Wars: The Last Jedi, and we wrap with a looooong review (one that is so preposterous that not even Rose and Flynn would go along with it...and that is saying something!).

Episode 51: Temporary, Immediate, and Unmonitored Access to this Podcast Dec 27, 2017

Show notes

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, why not! Here's a preview: We will be back with 50+ episodes in 2018, every one of them featuring something about...surveillance, or detention, or war powers, or movies. Naturally, we end this week--and 2017--with our patented frivolity segment. Our theme? Movies that have significant national security law elements in them. We only mention a couple, so be sure to send us tips on the ones we missed!

Episode 50: The Big Chill Dec 19, 2017

Show notes

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 that should inform this story? Still waiting... We've been waiting all year to find out what Congress will do with respect to Section 702 renewal, and it seems we will have to wait just a bit longer, for as of this morning there still was no action. Meanwhile, the same is true about the pending motion for jurisdictional discovery in ACLU v. Mattis. Chances are good both of those will see significant developments in the days ahead, so stay tuned for Episode 51 (which we are likely to record on Wednesday next week). Of course, it wouldn't be the National Security Law Podcast without a discussion of frivolous matters at the end. This week's topic: all-time great movie soundtracks. We heard through the grapevine that this would be a contentious discussion... Happy holidays to all!

Episode 49: Around the Horn With Interrogation, Detention, Prosecution, and Targeting Dec 12, 2017

Show notes

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 administration's views on the 2001 and 2002 AUMFs, and the possibility of repeal-and-replace. Your hosts will flag the highlights. Somalia: Staying with the AUMF theme, the next topic will explore the legal implications of a New York Times story on plans for expanded operations in Somalia. Military Commissions: Last but not least, there are some new charges pending in the military commission system, raising some interesting scope-of-conflict questions. Of course, that's not really the last topic of the day. The real last topic? As always on this show, your hosts close with frivolity. This week it is: terrible movies that we nonetheless love. Be sure to hit us up on @nslpodcast to share your own favorites!

Episode 48: The Logan Act: Not Just Another Hugh Jackman Movie Dec 05, 2017

Show notes

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 sarcophagi are watching the Rubin case unfold with bated breath. Last but by no means least: we've entered the final countdown for Section 702 renewal, and rumors are afoot to the effect that the SSCI bill or the HPSCI bill may simply be tacked on to a must-pass legislative vehicle (such as a bill to avert a government shutdown). Your hosts will take a quick look at what the Senate bill does and does not do, with that prospect in mind. Of course, then you have the trivialities segment. This time its an assessment of the College Football Playoff structure, followed--naturally enough--by a review of...Love Actually.

Episode 47: Donuts and Depth Charges Nov 28, 2017

Show notes

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 Carpenter (which will be argued on Wednesday), which raises the possibility that the Court will take a bite out of the third-party doctrine at least for cell-site location databases--and, in doing so, set off waves of litigation seeking similar constraints on that doctrine in other digital contexts. Your hosts note that a decision on these lines might well set the stage for litigation testing the notion of a foreign-intelligence exception to the warrant requirement, especially in connection with government access to telephone dialing records under the USA Freedom Act. And the Supreme Court tour then winds up with quick notes on the latest twists in the Travel Ban litigation. Next up: Back to GTMO, for an update and assessment of a slew of weedy, intertwined issues involving the authority of a military commission judge to compel civilian witnesses to testify, to have the last word on whether defense attorneys can withdrawal, to enforce its views with contempt sanctions, and so much more. All that, plus the question of how the heck to get these issues resolved and the Nashiri case moving forward again. Last (substantively): A quick review of the CFPB leadership clash, seen through the lens of how similar questions might play out in a weightier context--i.e., if the current Attorney General should decide to make a career move. Last (ridiculously): I know what you are thinking: You are dying to know what your hosts think are the all-time great submarine-themed movies, and the worst of that lot too. Stay tuned if the phrase "Con! Sonar! Crazy Ivan!!!!" warms your heart!

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