The National Security Law Podcast

By Bobby Chesney and Steve Vladeck

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 Nov 8, 2019


Unpacking the Legal Issues Behind the Headlines

Episode Date
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).
Oct 06, 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.
Sep 10, 2021
Episode 208: Afghanistan
In this week's episode, we focus on the unfolding situation in Afghanistan.
Aug 16, 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!
Aug 11, 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 Donald Trump attempting to invoke the First Amendment as the basis for a civil action challenging the actions of (private) social-media companies Brief notes on the parallel between the so-far-unsuccessful efforts to deter both attacks on US forces in Iraq and ransomware attacks emanating from Russia And as always, there's much frivolity both at the start and the finish!
Jul 13, 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 identity of human sources linked to the attack that killed Iran's Suleimani Sentencing for a US person convicted of teaching the making of explosives for purposes of a federal crime of violence Seizure of websites used by Kata'ib Hezbollah and also by an IRGC-affiliated Iranian media group All that, plus the MLB crackdown on scuffed balls and ... Steve's Excellent Cross-Country Road Trip!
Jun 28, 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 policy redlines in such cases? Mike Flynn, Larabee, and the idea of recalling separated servicemembers in order to subject them to court-martial proceedings (based on post-separation conduct) Also, did we mention the Mets are in first place?  Join the MLB-themed frivolity as we ramble about teams and players doing surprisingly well and surprisingly not-so-well!
Jun 15, 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).    
May 24, 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 comments on the Gaza situation. Noting that Matt Olsen will be nominated to replace John Demers as the head of DOJ's National Security Division, continuing the tradition of excellent leadership in that office. We also have all sorts of utterly frivolous thoughts about Top Gun and the Top Gun sequel, as well as Marvel's plan for a Star Lord-focused scripted podcast series set in a dystopian non-cinematic universe timeline. Can't wait!
May 20, 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.
May 07, 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!
Apr 20, 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!
Apr 13, 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!
Apr 05, 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'd that happen?  
Mar 26, 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....
Mar 10, 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.
Mar 03, 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 the 1986 Mets, too.  Seriously...we just kept talking about it, and having no editor, well, it's a long show as a result!
Feb 11, 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 why the same thing cannot (under current law) happen in the United States This, plus some lollygagging Bull Durham style, and dueling predictions about the Super Bowl!
Feb 04, 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, 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 servicemembers The WeChat suit in the 9th Circuit: Bobby review's last week's oral argument concerning the government's appeal of a preliminary injunction that suspended the Trump administration's IEEPA action against WeChat, citing First Amendment grounds.  The First Amendment argument here is quite weak; time to send this one back for consideration instead of the IEEPA issue. Confirmation of Avril Haines as DNI, and passage of a statutory override that will allow the Senate to proceed to confirm General (ret.) Lloyd Austin as SecDef. Biden immediately rescinded the "national emergency proclamation" as to the Southern Border, ending the redirection of defense dollars towards "wall" projects. That, plus loads of sportsball frivolity (yielding precious little insight!).
Jan 22, 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-and-comfort to armed enemies of the Constitution and government of the United States... Mike Pompeo announces an Iran-al Qaeda team-up...what legal implications? Nightmare scenarios for the endgame period: watch out for domestic terrorism at iconic government-related locations away from the Inauguration. How great is it that the Mets picked up Francisco Lindor?
Jan 13, 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
Jan 07, 2021
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!
Jan 01, 2021
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 Am 103 back in the news: AG Barr announces charges against the bombmaker (who may also have made the bomb that struck La Belle Discotheque in Berlin) And, of course, views on the Mandalorian season finale!
Dec 22, 2020
Episode 187: Trumplandia in the Twilight
Hey, we're back on our weekly schedule!  How 'bout 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 (.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 Circuit seems poised to accept TikTok's IEEPA interpretation argument The roadmap to closing GTMO under the Biden administration (well, we are speculating, but still...) Did you know the Periodic Review Board authorized a GTMO transfer the other day?  That's 6 approved for transfer, out of 40 remaining overall. Another trial judge for the 9/11 case...or one of the old ones is back.? DOD ending support for CIA Title 50 operations? The NDAA: veto or not? If not, then here's what Section 1702 does for Congressional oversight of "sensitive military cyber operations" The Supreme Court's Briggs decision: bad news for a certain podcast co-host Is it just me, or is this least really long? Frivolity: The Mandalorian of course.  Or is it the Manladorian? (Google it)
Dec 16, 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 including the GMTO and military commission-related provisions (or, in the latter case, the absence of one such provision), as well as the proposed National Cybersecurity Director Plus, inevitably, a review of the latest episode of The Mandalorian, and appreciation for the New York Colt McCoys (Giants)!
Dec 08, 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-separation crimes The killing in Iran of a senior al Qaeda figure, and the related question of how the passage of time impacts (or does not impact) an individual's connection to the AUMF and the U.S. government's position on the existence of an armed conflict with al Qaeda And, at long last, frivolity focused on The Mandalorian Season 2!  (Plus, the improbable playoff prospects of the New York Giants, for whom anything is possible with Colt McCoy at the helm!)
Nov 30, 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 spending spree....
Nov 11, 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)!
Nov 06, 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-awaited Tom Berenger frivolity!  Jake, Barnes, Longstreet...much to discuss!
Oct 22, 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, and then argue over the wisdom of having the Speaker of the House in the statutory order of succession for the presidency Where in the world is Steve terms of oral arguments?  He was in the Texas Supreme Court this week, and will be in the Supreme Court of the United States next Tuesday (for Briggs). Meanwhile, we have one word of advice and one homework assignment for y'all: ADVICE: WATCH TED LASSO! HOMEWORK: Be prepared to identify the top 5 best, and bottom 5 worst, Tom Berenger movies (for next week's frivolity)!
Oct 08, 2020
Episode 180: This Podcast Really Should Be Weekly…
We're not a biweekly show, we promise!  It just seems that way 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!
Sep 29, 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 (unsuccessfully) in a state court. The latest twists and turns with TikTok and WeChat under IEEPA and CFIUS And the Mandalorian trailer...OMG OMG OMG
Sep 16, 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.
Aug 31, 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 cards with respect to whether the all-male military draft rule remains constitutional given that the role of women in the military has changed so much since Rostker...will SCOTUS take the case though? Some National Security Division updates All that, plus 80s soundtrack frivolity!
Aug 21, 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, that was fall 2017, which was like 623 years ago...
Aug 10, 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.
Jul 31, 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 sharp dispute over the interaction of FISA and the state-secrets privilege just might set the stage for SCOTUS to weigh in And then, after all, we have what we must admit was a desultory frivolity segment.  Though maybe that is purposeful performance art, projecting how the MLB "regular season" is going to feel...  
Jul 21, 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?
Jul 10, 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).
Jul 02, 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.
Jun 26, 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: understanding how it relates to IEEPA, where it does and does not provide wiggle room for the president, and whether its plain terms warrant application to President Xi and other senior Chinese officials. As for frviolity: Sportsball is almost back...but will the NBA or MLB really deliver games?
Jun 19, 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 against not just ICC personnel involved in such actions but also against those who materially support them. And a surprisingly belated-yet-timely review of HBO's Watchmen series.  Seriously, if you haven't watched it yet, get started!
Jun 12, 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.
Jun 02, 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.
May 21, 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 anyone watching??? And then there was the season finale of Westworld.  It's like they just ran out of good ideas...
May 14, 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 that, plus a review of WestWorld episode 7.
May 02, 2020
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 minutes about WestWorld.
Apr 22, 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 report." But forget all that.  The real action, as usual, is the frivolity.  Westworld's latest episode is on tap!  
Apr 16, 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) of "the P!", noting how the mere invocation of it (even without actual use) not only plays a political role but also, perhaps, plays a subtle but important role in changing negotiation postures. We've got a fascinating Fifth Circuit decision, In re Abbott, that raises complex doctrinal questions about how to reconcile the compelling state interest in public health during a pandemic with individual rights claims (in this case abortion rights, but there are plenty of other possibilities), and what the right reading of Jacobson v. Massachusetts (1905) is with respect to that question.  Does all rights claims reduce to the protections of mere rational basis review in such settings?  Or should we instead apply the usual doctrinal frameworks for analysis of a particular right, but with full recognition of the unusually-compelling nature of the offsetting government interest? For example, would you really apply mere rational-basis review if a state decided to make it a crime to advocate in favor of relaxing shelter-in-place rules? Modly, we hardly knew ye!  Modly's ill-advised speech to the crew of the Theodore Roosevelt went over like a lead that eventually landed on his own head. (ed. note: that makes no sense....) Beware, IGs!  It's legal for the president to remove them, but is it right to do so? FISC fallout from Horowitz Part II: Horowitz is one IG who is not on the hotseat, it's safe to say!  Hot on the heels of his report blasting FBI for shoddy compliance with its own "Woods procedures," the FISC is out with a strict order demanding to know whether those compliance problems might eventually have led to incorrect or incomplete representations to the FISC...and, what's more, it wants such scouring done not just for the 29 cases Horowitz sampled but also across the FISC docket, with bimonthly reporting to the FISC on progress.  Not a fun time to work at FBI GC! Sandig v. Barr - Judge Bate holds that to violate the Computer Fraud and Abuse Act's "unauthorized access" condition, one must engage in some kind of circumvention of security measures, and that it's not enough that you are unauthorized in the separate sense of doing something that violates "terms of use/service." This will help solidify a trend of rulings in that direction. But enough law and policy.  Gimme WestWorld Season 3, Episode 4!
Apr 08, 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.
Apr 02, 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: 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 which we say, covfefe! What might occur in the weeks ahead in relation to data-gathering in support of public health measures (especially exposure-tracking and quarantine enforcement) The United Kingdom's Supreme Court ruling in "the Beatles" case, refusing to allow the Home Secretary to pass the fruits of a British criminal investigation to the US Justice Department because the United States intends to seek the Death Penalty in that case.  Will we now see a shift to prosecution without the death penalty, or instead ongoing military detention? And if the latter, will it hold up in court? And then there's the frivolity. If you are ready to talk Picard or West World, we are here for you!
Mar 27, 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 process when courts are shutdown or disrupted by the pandemic.  Is it a Suspension when there's a suspension of operations? And then there's Picard.  We review the two most-recent episodes!
Mar 21, 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 the most-detailed argument we have yet seen from the U.S. government regarding the domestic and international legal issues associated with the Soleimani airstrike a D.C. District Court decision finding that Army Regulation 190-8 is legally enforceable via habeas as to a GTMO detainee, and on that basis concluding that a medical-necessity repatriation may be in order for one of the detainees a decision by the International Criminal Court to authorize its prosecutor's office to investigate war crimes in Afghanistan, including allegations of American war crime (well, like the Solarium report, we don't so much talk about this as we note it occurred and promise to talk about it more...later) And, of course, we talk about the latest episode of Picard.  Your frivolity homework, by the way, is to watch the season premiere of Westworld next week.  And note: no episode next week, due to Spring Break.  We'll be back after that!
Mar 11, 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 detainees still in military detention at GTMO.  What does it signify to say that someone "loyally gets appointed"?  A grammatical mess, perhaps, but the phrase nicely captures the current President's (already familiar) understanding: if you work anywhere in his organization, personal loyalty is job one.  Loads of developments relating to the Trump administration's immigration policies, particularly relating to asylum claimants. But nevermind all that.  Tune in just for the Picard frivolity at the end!
Mar 04, 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!
Mar 03, 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) at Disneyland; a review of Come From Away; and a review of the latest episodes of Picard.
Feb 26, 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 spontaneous frivolity at the beginning of the show regarding the Astros scandal.  So, you've got that going for you, which is nice!
Feb 19, 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!
Feb 12, 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 him, and then to circulate information about precisely where those people can be found, might seem merely bad taste in the case of a civilian.  But for a retired servicemember subject to recall, and subject as well to the rather broad scope of certain UCMJ offenses, might the answer be different? The show concludes with a reminiscence about Kobe Bryant, and then a review of...Picard, of course!
Jan 29, 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.
Jan 22, 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...
Jan 16, 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.
Jan 06, 2020
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!
Dec 18, 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....
Dec 10, 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 removal...with little prospect for effecting that removal, given his stateless-status.  He is now subject to the not-previously-used USA PATRIOT Act Section 412 authority, which involves an initial 7-day window for detention and then calls for semi-annual judicial review.  The case presents both procedural due process and substantive due process issues. Designating Mexican drug cartels as "foreign terrorist organizations"--President Trump says this is in the works at last, so we review the legal and policy aspects. National Security Division Roundup: We offer brief notes on a few major recent developments in terrorism-related cases. But it's all about the frivolity, so stay till the end for our idle opinions on what ought to happen with the College Football Playoffs final four, and especially for our take on episode 4 of the Mandalorian.
Dec 04, 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. But of course what you really want to know is what your hosts think of episode 3 of the Mandalorian.  That, plus Lamar Jackson!
Nov 26, 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 presidential power and national security law issues (including a surprise appearance by the Supreme Court's 2008 Boumediene decision (cast in the unlikely role of most-outrageous infringement of Article II powers decision ever). A district court decision in the Muthana case, resolving it on narrow factual grounds. From there, it's a pop culture spoiler fest, with reviews of the first episode of the new season of The Crown and the first two episodes of The Mandalorian.  Hey, how about a cross-over between those shows???
Nov 20, 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, Roving Wiretap, Section 215, and USA Freedom Act CDRs) Rumor has it...that President Trump wants to can the IG for the IC on the ground that his handling of the Vindman complaint was not sufficiently loyal.  Ugh.  But make no mistake: Presidents can remove IGs if they want; they are not protected by for-cause limitations. Not impeachable if no ultimate follow-through?  Sigh.
Nov 13, 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!  
Nov 09, 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!  
Oct 30, 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!
Oct 23, 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 roundup: Who is the acting secretary, who is not eligible to be so designated, and what's this about an administrative subpoena authority designed to help deal with botnets? Being in the greater Boston region, our frivolity had to be Boston-themed of course.  So, tune in for a wicked and rambling run through of Boston-based movies, tv shows, and sports heroes.  Better still, stay tuned after that so you can enjoy the extended audience Q&A session that followed it all!
Oct 17, 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..."  
Oct 09, 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...]
Sep 26, 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 Process clause. Executive privilege: does it make any sense to say that it applies as to a conversation between POTUS and a private citizen? Paging Steve Vladeck about citing Steve Vladeck; or, the story of recursive citations Best of all, however, is the path that leads from talk of a Princess Bride reboot to a generation-later sequel to Coming to America...
Sep 18, 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!
Sep 11, 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 don't ask the National Security Advisor about that, he might not be in the loop on all this! National Security Division at DOJ has been busy, this time with charges in two cases involving naturalized American citizens who sought to take up arms for the Islamic State--one in Syria, and the other on a pedestrian bridge over the Grand Central Parkway in Queens... And then there's the sportsball...tune in for NFL predictions that are worth what you are paying to listen!
Sep 04, 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 hosts take up the task of giving advice to 1Ls who are starting law school this month.  Or, you could just watch clips from the Paper Chase...
Aug 28, 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 original application before entering the United States (and associated issues with "national" injunctions) And then there is our Greenland segment...seriously, a Greenland segment!
Aug 20, 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 recent surge of the New York Mets and the fully-probable and ongoing surge of the Houston Astros.
Aug 06, 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 the Court's original (and perhaps exclusive?) jurisdiction for certain types of cases involving states. NSD Roundup: Usually the roundup of news involving DOJ's National Security Division involves one prosecution victory after another, but not this week: We pick up a story from our 109th episode, reporting on the district court's recent decision to vacate the conviction of Hamid Hayat (the Lodi, California man convicted more than a decade ago for an alleged terrorism plot). As for frivolity, this week we keep it rather brief and off-the-cuff, focusing on some Major League Baseball trade developments.
Jul 31, 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 on grounds of "outrageous government conduct," based on the manner in which they had been interrogated.  We explain what that sort of motion involves, compare it to past examples like Jose Padilla, explore its prospects, and project what sort of sanction realistically might be imposed should the defendants actually prevail on the merits. SCOTUS, Executive Privilege, and United States v. Nixon - It's the anniversary of the Court's Nixon ruling, which recognized Executive Privilege but also confirmed that it can be overcome.  Timely! Going Dark Part Deux - We note AG Barr's speech bemoaning the Going Dark trend, and speculate about the prospects for actual legislation in this area (spoiler: prospects are slim). As always, we end with frivolity (or perhaps it is more accurate to say, there's actual planned frivolity at the end, in contrast to all the unplanned stuff earlier in the show).  This week?  We breakdown the just-released, expanded trailer for WestWorld Season III.  Critical question: If WestWorld was real and included a WesterosWorld environment, which House would you join?
Jul 24, 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 another concerning _____ [adjective] _____ [plural noun]. Luxemburgers: ____ [name of celebrity] explains what took him to Luxembourg recently and what this had to do with Privacy ____ [noun]. The NDAA inches closer to a ___ [noun] fight: The House _____ [past-tense verb] its version of the NDAA, and it is packed with ____ [plural noun].  The White House may well ____ [verb] the end result, but first we have to see what happens with the _____ [name of an organization] version of the bill and the process of reconciling the two. UCI & Bergdahl: The Army Court of ___ [plural noun] has ruled on Bowe Bergdahl's Unlawful Command Influence appeal, finding that President Trump's Twitter ___ [noun] constituted a ____ [adjective] ____ [noun], but the resulting _____ [noun] was harmless. Casebooks: Just in time for ___ [a year far into the future], Steve and his co-authors ______ [name of rock star], ____ [name of movie star], and ______ [name of politician] have completed the supplement for their casebook on ______ [noun] law. As for frivolity, your co-hosts at long-last present their review of a the ___ [adjective] Star Trek episode "The ______ [name of animal]."
Jul 17, 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 in the preliminary injunction opinion discussed in detail in Ep. 123, but we bring things up to date here. SCOTUS calls BS - Chief Justice threads the needle in the Census Citizenship Question case, Department of Commerce v. New York, holding on one hand that a citizenship question can be asked on the Census, but also that the Department of Commerce in this instance was lying when claiming to want to do so in 2020 solely in order to help DOJ enforce the Voting Rights Act.  That pretext ruling sets up an interesting comparison to the earlier Travel Ban litigation, and sets the table for more challenges in the near future with DACA, Border Wall litigation, and much more. Crypto Wars Redux? News of a National Security Council Deputies Meeting discussing the "going dark" challenge has people wondering if a push for legislation is on the horizon.  We suspect not. Phone Metadata and Compliance:  Recent news detailing how a telecom provider gave NSA too much information in response to an otherwise-proper USA Freedom Act request has added fuel to the fire that is burning right underneath the thin thread on which Section 215 renewal is hanging.  But was this proof of the need to let that thread snap, or just an example of a compliance framework effectively spotting and fixing errors? And then there was sportsball.  Turns out the Knicks front office isn't good at what they do, and Golden State's is really, really good.  So say we all...
Jul 01, 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 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...
Jun 26, 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 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!
Jun 18, 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 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...
Jun 13, 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 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...
May 28, 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 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!
May 21, 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 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.
May 15, 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 that is just the appetizer.  Game of Thrones Episode 4 ran on Sunday night, and these guys are not happy about how it went...
May 07, 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...
Apr 30, 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 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.
Apr 17, 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-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 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!  
Apr 13, 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: What is the difference between declining to enforce a statute on constitutional grounds and declining to defend it in court (and how does any such distinction apply to the White House decision to oblige DOJ not to defend the Affordable Care Act on the individual-mandate and severability issues)? And just when you think it can't get any nerdier, it's time for the frivolity--and for the Thrones Deadpool!
Apr 02, 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 relating to terrorism as to situations involving armed forces engaged in armed conflict) might end up precluding certain U.S. extradition requests involving material support charges Why the release from prison of John Walker Lindh (once famous as "the American Taliban") might portend a larger debate (and what does this have to do with his Irish grandmother???) And of course it would not be the same without some frivolity.  We've got opinions about True Detective Season 3, traveling with infants to LA, the NCAA Tournament, and Hall and Oates. Seriously.
Mar 25, 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 Persons in Detention? This case looms very large, and involves a circuit split. Once More Unto the Breach...with Larabee II! A Double-Jeopardy Windfall? Double-mishandling of double jeopardy in US v. Rice? Online Material Support to the Islamic State: The arrest of Kim Vo in Georgia. And then, just because these two don't know when to stop, there's the frivolity: musings about US News Rankings, debate over the college admissions bribery scandal, and a surprise appearance by ... Hall and Oates?  You make-a-my dreams come true, dear listeners!
Mar 13, 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 House in voting to overturn the border emergency declaration, but a veto override is unlikely. The 200th anniversary of McCulloch v. Maryland Today's Executive Order in which President Trump revokes President Obama's EO 13732 Section 3 requirement of annual disclosure of airstrike numbers and civilian and combatant casualties outside of areas of active hostilities (i.e., areas other than Afghanistan, Syria/Iraq, and Somalia). As for frivolity, let's just say that Winter Is Coming on April 14, and we have a season 8 trailer to parse!
Mar 06, 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 review in Ali? Speaking of the Fifth Amendment: Does the male-only nature of Selective Service Registration violate the protection against gender discrimination located in the equal-protection aspect of the Due Process Clause, now that women can have combat roles? But these two can disagree about much more than the law.  They've got opinions on the Oscars too...
Feb 26, 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?  
Feb 19, 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 segues nicely [ed. note: Thank you for not writing Segway like you usually do.] to a review of the legal and other challenges that will arise if captured Islamic State fighters are taken to GTMO as part of a larger deal to resolve the fate of a large group of IS fighters currently held by SDF forces. [ed. note: I deleted the line where you made up a claim that an SDF wrote to you to say "Screw you guys in the West, we aren't going to keep holding IS fighters from your countries if you are going to pull out of Syria and leave us to the mercy of Assad, the Russians, the Iranians, the Turks, etc.  Detain 'em yourselves!"  No one will believe they wrote you, however accurate that sentiment may be.]   Speaking of terrorists behind bars, we've also got the unbelievable situation that recently unfolded in Germany, where a guy served a (comparatively-short) sentence for involvement in a plot to kill Americans in Germany, and the United States had just unsealed an indictment charging him with crimes in Afghanistan including the death of two U.S. soldiers.  Extradited to the U.S., right?  No, sent to Turkey, apparently based on a double-jeopardy theory.  Vas ist das? [ed. note: I changed your, ahem, more colorful sentence to the more-polite "vas ist das."  Diplomacy, guys, diplomacy.  After all, you don't read German and probably have the underlying facts at least partially wrong.] Well, as long as we are talking about the arrest of terrorism suspects, we've got a National Security Division update involving the arrest of two guys who were supporters of Lashkar e-Tayyiba, the Pakistan-based terrorist group responsible for the 2008 atrocity in Mumbai.  One of the guys had expressed interest in training to become an executioner, particularly on the beheading side of that line of work. Next, we have a very quick run-through of the legal issues raised by Project Raven, based on the recent Reuters story describing former NSA employees working as contractors for the UAE's SIGINT service.  Pro tip: If you go to work for the UAE's SIGINT service, do not act surprised when you find out they are monitoring political critics.  [ed. note: This whole bit on the show was just a half-baked recap of what Bobby wrote on Lawfare here.]   But you are in it for the frivolity, no?  [ed. note: no, no they are not.]  Excellent!  Well, we've been going to concerts and watching the Grammys, and we have strong opinions about all of it!  [ed. note: oh, joy, they have opinions about professional musicians. No doubt they'll ask you two to tag-team host the Grammys next year.]
Feb 12, 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 D.C. Circuit's opinion in Klayman v. Obama, affirming dismissal of an attempt to litigate Section 215 bulk metadata collection (now superseded by the USA Freedom Act) on mootness grounds, and likewise affirming dismissal of a challenge to 702 collection on standing grounds. And then there's the Super Bowl.  You'll hear more offense in our breakdown of the game, the halftime show, and the commercials than you saw in the game itself!
Feb 06, 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 the one where the CFO is facing extradition from Canada for fraud in re Iran sanctions Pretty Soon No One Will Fight Alongside Us: On the Danish court ruling in the Green Desert Case Round 74: Arguing about whether DNI Dan Coats should stay or resign Frivolity:  Super Bowl predictions --> Super Bowl halftime shows --> the "live musical" trend --> why didn't Rent Live have an understudy??? Spread the word about our show, and be sure to give us a rating on iTunes or whichever podcast platform you prefer!
Jan 30, 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!
Jan 22, 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 put in a rating on iTunes or whichever other platform you use.  Thanks!
Jan 14, 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 shifts to a counter-Iran rather than counter-IS mission, the international law issues surrounding our role become dicier. The resignation of Jim Mattis and the arrival of another acting cabinet secretary Paying for the Border Wall by declaring a national emergency: We unpack the issues raised by the potential invocation of the National Emergencies Act and then 10 USC 2808, with an emphasis on the critical role that national security fact deference would play in the inevitable litigation challenging the propriety of invoking 2808.  We also explore the looming eminent domain obstacles, and ask the question: If DOD funds *do* get moved around to pay for a wall, what otherwise-funded projects then don't get built? The D.C. Circuit slaps back one nationwide injunction concerning the Mattis Rule on transgender servicemembers, but two other such rulings remain in place.  Will SCOTUS grant cert. before judgment? SCOTUS also has some important political question doctrine cases it is considering hearing. The military commissions took a fresh hit this week when we learned that the replacement for Judge Spath *also* has been seeking appointment from DOJ as an immigration judge.  The oral argument at the DC Circuit next week is going to be fascinating... Harold Martin, the former NSA contractor charged with retention of national defense information, lost his bid to get the fruits of various search warrants suppressed, but did prevail in getting his statements to the FBI suppressed (lesson: if you cuff the guy and drop him to the floor at first, and control his movements for several hours while excluding access by his partner, you do run the risk of having the whole thing treated as constructive arrest even if you repeatedly tell him he's not under arrest). DOJ NSD takes on Chinese commercial espionage again in two more cases, and gets strong sentences in a pair of Islamic State-related cases. And then we have the frivolity.  Mean Girls.  It's fetch, we promise.
Jan 07, 2019
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.
Dec 18, 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!
Dec 11, 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-support to the Islamic State case.  Whereas run-of-the-mill 2339B cases involving the Islamic State tend to involve people who are trying to go abroad to join IS, this fellow was well-armed and had a stated intent to kill people right there in Hawaii. The Senate Resolution on Withdrawing US Forces from Hostilities in Yemen -- That bill is suddenly moving in the Senate thanks to increasing angst about the weak White House response to the Khashoggi torture-murder, raising the question whether that momentum can actually result in veto-proof legislation emerging in both houses--not to mention whether it would actually compel any particular change to current U.S. military support to the Saudi coalition given the standard executive branch interpretation of "hostilities." And then the real fun begins: College Football Playoff (and Sugar Bowl) predictions.  We don't agree on anything, it turns out. This has the happy effect, of course, of ensuring we get at least some predictions right!
Dec 05, 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 review of district court decisions before a Circuit Court has weighed in (including in relation to the ban on transgender servicemembers) An update on three recent convictions in terrorism-related cases Airstrikes in Yemen, Somalia, Pakistan, and elsewhere: we discuss a recent article by Spencer Ackerman regarding the data on these strikes, and the big picture implications But wait, there's more.  If you order now, you'll also receive a wildly-frivolous review of that Christmas classic....Love Actually.  Actually Awesome? Actually Awful? A bit of both?  Sounds rather like this podcast, come to think of it...
Nov 27, 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 does the House really have, in the shadow of declinations and pardons? We check in with sustaining member Nashiri and the military commissions.  Be sure to listen to the latest twists and turns with the ten-layer dip, and enjoy the awkwardness when Bobby criticizes the CMCR before a live audience that might or might not include some interested parties! The DNC has sued the Russians for the 2016 hack, but the Russians are now pointing out that pesky Foreign Sovereign Immunities Act.  The doctrinal questions here are quite interesting, tovarisch! War Powers: We now have access to the DOJ OLC's 2014 opinion on the domestic source of authority for the Obama Administration to initiate airstrikes against the Islamic State.  Buckle up for some Article II action! Trumplandia:  Say, who is the attorney general these days anyway? Inquiring minds want to know, and we've got the details...including predictions on which litigation (if any) will get the question before the courts before 210 days have gone by (listen to find out why that number matters!). As for frivolity?  Why, we have audience Q&A! Bottom line: this was a really fun day, as you'll probably be able to tell!  Looking forward to the next live one...who wants to host???  
Nov 14, 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.
Nov 06, 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 not enough, suddenly we find President Trump also talking about an executive order to revoke or limit birthright citizenship.  Prepare for some more fun-with-debunking, as we take a tour through the Fourteenth Amendment and the Supreme Court's decisions in Wong Kim Ark and Plyler v. Doe.  Domestic terrorism - The horrific events of the past week lead us to close with comments about domestic terrorism as a core national security concern. No extended frivolity this week, either.  Instead, we close with a special guest offering wise words and a resounding illustration of leadership.
Oct 30, 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 (12:15-1:45) at American University's Washington College of Law are in place!  The event will be in Yuma Hall Room 401, and the whole thing is thanks to our colleague Prof. Jen Daskal.  Thanks Jen.  Please RSVP here if you are planning to attend!   And don't forget -- the deadline to get an NSL Podcast t-shirt is Halloween.  Order here!
Oct 26, 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.
Oct 25, 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 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?
Oct 16, 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 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.
Oct 11, 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 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?
Oct 02, 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 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!
Sep 26, 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!
Sep 18, 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).
Sep 13, 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" 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!
Sep 04, 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 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.  
Aug 28, 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 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!
Aug 21, 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 because the Nashiri litigation is held up at the Court of Military Commission Review, but we do at least have a new judge in the case. Trumplandia: We mostly resist the temptation to wallow in the Omaraso debacle, and actually keep this segment of the show short for once.  Mostly we chat about the fact that four federal judges (now including a Trump appointee) have all rejected claims that Special Counsel Mueller's appointment is unconstitutional. Notes on the National Security Division: We check in with NSD, finding a handful of pleas, sentences, and other developments in national security cases (including the apprehension by the Cubans of an American trying to fly to Russia in the 12th year of his abscondment from alleged acts of terrorism for the Earth Liberation Front...definitely sounds like the plot of a TV show). And then we just start indulging ourselves with what must be twenty or more minutes of rambling frivolity, starting with some TV and movie reviews and spreading out to cover some books and...NBA projections?  Remember: experts on national security law, but nothing else!
Aug 14, 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.
Aug 07, 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.
Aug 01, 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 under color of a Mutual Legal Assistance Treaty.  We foreshadow a potential litigation dispute should Russia actually invoke the MLAT in this setting and then the Trump Administration fails to invoke the "essential interests" exception to it. Revoking clearances to punish (and chill) dissent: In a strong bid for authoritarian impulse of the week, the White House is exploring punitive revocation of clearances held by an array of prominent former national security officials who have been vocal in criticizing the president.  Relying on this terrific primer from Brad Moss at Lawfare, we review the legal framework. Non-US detainees held by SDF in Syria & potential US prosecution of 2 ex-British IS members: We again note that about a 1000 IS fighters are held in SDF custody in northern Syria, including many European citizens.  There's no chance they'll stay there forever, so disposition questions abound.  A pair of them who had their British citizenship stripped and who are linked to several especially-heinous crimes may well end up in the US for prosecution.  But will that be a civilian court or a military commission? And will the British be able to pass relevant information to us for this purpose if the death penalty is on the table? Doe v. Mattis draws closer to an end: ACLU and DOJ jointly notified Judge Chutkan that they are working on a negotiated settlement and will report further by July 30 (in time for the next episode, we hope!). If they do a deal, it likely will involve either release into Syria as DOD has requested (but this time with travel documents, perhaps?), or maybe even release to Saudi Arabia or some third country after all. Almost another Doe v. Mattis: Turns out Doe wasn't the only American caught by SDF fleeing IS territory.  Last month they captured Ibraheem Musaibli, from Michigan.  But instead of transferring him to US military custody in theater, he's been shipped to the US for civilian prosecution. At the same time, so too has been Samantha Elhassani of Indiana, who had gone to Syria with her kids and her IS fighter husband, and now faces a lying-to-FBI charge. Oh, you came here for the frivolity?  We have a segment that is as solid as a rock.  Solid as The Rock, in fact.  
Jul 25, 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 from releasing Doe into Syria.  The ruling will drop later this week most likely, but why wait? Your hosts speculate on the likely outcome, dwelling on the role of "national security fact deference" and, especially, whether the government can be forced to give Doe a passport or other identity documents. Judge Kavanaugh - If confirmed, would Judge Kavanaugh mark a significant departure from Justice Kennedy on national security matters?  Your hosts find a bit of common ground here, but plenty on which they disagree. Military Commissions - There's a new issues, involving the Lucia decision, which may have a big impact in Nashiri (and other cases).  Is the Convening Authority properly appointed? NDAA note: The Conference Committee is finishing its work on the new NDAA, so we'll delay our coverage of its cyber (and other) provisions until the final text is public. GTMO and Periodic Review Boards - An oral argument in the CCR's renewed-habeas case for a large group of detainees at GTMO took place before Judge Hogan last week, renewing attention to the question of whether a person ever can be released once initially determined eligible for detention there.  The Periodic Review Board process has long been the answer to that question, but with uncertainty regarding the willingness of the Trump Administration to actually act upon PRB determinations, the possibility of legislation to stabilize and perhaps empower the PRB system is beginning to get attention. As for frivolity...Die Hard appears here and there on the show, but the main segment at the end is more of an "extra" than a "frivolity." Steve has a discussion of the new supplement for his co-authored casebook (click here for the front matter). And on Thursday this week, Bobby will be in DC, at the Heritage Foundation, for an event drawing attention to the policy, legal, and technical challenges associated with Deep Fakes.  His brand-new paper with co-author Danielle Citron (Maryland) has just gone live on SSRN, here.  The event at Heritage, which features a keynote from Senator Marco Rubio, will be livestreamed (12:30 to 1:30 eastern, this Thursday).  More here.
Jul 17, 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 (including an analysis of the Kawhi Leonard debacle in San Antonio and notes on our favorite things about the World Cup).
Jul 09, 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.  
Jun 27, 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 - another remarkable district court ruling, this time finding that the chief defense counsel at GTMO is within the personal jurisdiction of the military commission there, but also concluding that Judge Spath cannot impose a contempt punishment without the involvement of the commission panel. Judge Pohl's scheduling order for the 9/11 military commission trial books up all of 2019 for pre-trial proceedings, meaning that the actual trial is not happening prior to 2020. The "power to wage war means the power to wage war successfully," yes, but for goodness sakes don't cite Hirabayashi for that much-quoted language! Convicted Benghazi conspirator abu Khatallah loses on his bid for a mistrial A quick run-down of other DOJ national security developments this week includes new charges against a man allegedly responsible for leaking the CIA "Vault 7" materials to Wikileaks and also a Wisconsin woman who allegedly hacked the social media accounts of others in order to promote the Islamic State (including sharing Ricin production instructions). The Third Circuit issues an important Suspension Clause ruling in Ocasio-Martinez Judge Brinkema rejects a bid by CACI to escape an ATS claim based on a proposed extension of Jesner SCOTUS still hasn't decided Carpenter, Dalmazzi, or the Travel Ban cases! Notes on new developments in City of Chicago (nationwide injunctions) and Hernandez II (cross-border shooting) Trumplandia:  we punt till next week on the OIG Report and ... Space Force! Whew.  Time for someone to go change some diapers!
Jun 20, 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 the release meet some threshold of safety and, if so, is that rule satisfied here? Boumediene's 10th anniversary:  A decade ago, the Supreme Court decided Boumediene v. Bush.  Viewed as a landmark at the time, what has its legacy turned out to be? SCOTUS watch: Still no Carpenter, Dalmazzi, or travel-ban decisions. The investigation and arrest of James Wolfe: the former head of security for the Senate Select Committee on Intelligence is under arrest for lying to the FBI about his relationship with reporters, with a real threat of further charges for mishandling classified information.  The underlying investigation, meanwhile, included acquisition of a reporter's communications metadata.  All of which provides an excellent occasion to review and discuss DOJ's guidelines governing such journalist-related investigations. Trumplandia Road Show: We could hardly ignore this, could we?  The Trump-KJU summit produced some significant American concessions regarding security guarantees for the DPRK and a promise to end US-South Korea joint military exercises. But it did not (yet) produce a reduction of sanctions.  We explore the authority of the president to do these things, emphasizing the limits on his control over sanctions in this particular setting. All that pushed us well past the 1-hour mark, so after promising some frivolity involving Steve's favorite SCOTUS decision of all time, we end up pushing that topic off till next time.  Till then...
Jun 12, 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 CMCR has turned up inquorate), and we have a CMCR-related Dalmazzi update accounting for a curious government filing before SCOTUS in response to Steve's letter pointing out that one of the CMCR judges has retired from the military yet apparently still serves on the CMCR in a distinct, civilian capacity. The ECHR and CIA Black Sites: A fresh pair of decisions by the European Court of Human Rights condemning member states for allowing the CIA to operate black sites in their territory.  Don't expect any ECHR member state to cooperate on that front, or anything akin to it, in the future... The Army Court of Criminal Appeals has denied Chelsea Manning's appeal challenging convictions on CFAA, Espionage Act, and other charges. The District Court in DC has dismissed all claims by Kaspersky arising out of the DHS binding operational directive and the NDAA provision, both banning Kaspersky from government systems.  Fun to have an occasion to discuss...Bills of Attainder???  We've got a series of DOJ counterterrorism successes to note (all of them--gasp!!!--involving spies I mean confidential informants) Trumplandia: another hot week in Trumplandia, as Team Trump leaks advocacy letters insisting that POTUS cannot obstruct justice, that one (of two) obstruction states does not apply as to the FBI, and that POTUS can pardon himself.  Paul Manafort jumps in with some supremely ill-advised witness tampering, just for kicks. As for frivolity: instead of Weird Al, we bring you a review of...Paul Simon???
Jun 05, 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 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!)
May 30, 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 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?
May 22, 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 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?
May 15, 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 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.
May 08, 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 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...
May 01, 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 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!
Apr 24, 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!
Apr 17, 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-awaited review of...Black Panther!  (Of course, you'll also be "treated" to more celebration of the Amazin' Mets).
Apr 16, 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 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).
Apr 10, 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 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!
Apr 03, 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 responded quickly, and we review all of it. The meaning of "terrorism": In connection with the recent Austin bombings, the question of what counts as "terrorism" both as a legal and a policy matter has arisen once again.  Should there be a new federal crime of terrorism?  State laws to that effect?  Is the status quo fine?  How should journalists talk about violence that causes fear in the community when it is not entirely clear why the perpetrator is carrying out such acts? John Bolton and law: A quick note on the new National Security Advisor's legal and policy orientation And then there's the really important stuff: The pros and cons of ... fantasy sports in general, and fantasy baseball in particular!  
Mar 27, 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 Afghanistan) The demise, for now at least, of S.J. Res. 54 (calling for withdrawal of US support for Saudi-led military operations in Yemen) The Cambridge Analytica/Facebook data privacy mess (excellent post by Andrew Woods on this here) The RICO indictment of Phantom Secure for conspiring to support criminal activity through provision of secure communication services (and what this might portend for the Going Dark debate) (Bobby's post on this here) And, what you really wanted to know: just what will Bobby and Steve be working on this summer, once classes are over!
Mar 21, 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 won't likely matter much in practice, as the real issue becomes whether the UK will impose serious economic sanctions.  Speaking of which... To the considerable surprise of many observers, the Trump Administration today came out with new Russia sanctions, including a relatively strong statement denouncing Russia for, among other things, interfering in the 2016 election, launching history's most-costly malware (NotPetya), and the attempted assassination in the UK.  The sanctions include action specifically under Section 224 of CAATSA, which is something we've been waiting quite a while to see.  The Treasury Department, at least, turns out to be on the case. Speaking of economic powers of the executive branch: we also have the CFIUS (Committee on Foreign Investment in the United States) process putting a spike in Broadcom's attempted acquisition of Qualcomm on national security grounds.  We provide more history than you could possibly want regarding the CFIUS process, and explain why the prospect of falling behind on 5G proved fatal to this deal. Lest we be accused of neglecting our usual topics, we've also got coverage of a key counterterrorism legal document: the statutorily-required report from the Trump administration regarding whether and how it may have departed from the Obama administration's own report on the domestic and international legal architecture for counterterrorism and combat operations. Perhaps not surprisingly, the publicly-released version of the document is anodyne, reflecting more or less a status quo approach. We don't really get into the looming D.C. Circuit oral argument in the Al-Alwi case, which concerns whether the status of the conflict in Afghanistan has changed so as to implicate the Hamdi warning about "unraveling" detention authority.  But we do note the case will be argued next week, and provide a extra-mini preview to be followed by a more serious discussion next week. And then, of course, there's frivolity.  Specifically, March Madness frivolity.  Duke and UNC fans will appreciate it, others not so much!
Mar 15, 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 when the attorneys found a microphone in the relevant room (one that the prosecution says was merely an unplugged legacy piece of equipment from prior use of the same room as an interrogation room), but then were directed not to talk to their client about it.  We discuss the implications both substantively and procedureally. Doe v. Mattis, the American citizen enemy combatant case: Two storylines are in play here.  First, we now know which judges will comprise the D.C. Circuit panel that will hear argument on the detainee-transfer issue in early April.  Second, the briefing on the underlying legal dispute has developed to the point that we can provide a deeper-dive into the relevant questions. The Doe v. Mattis deep-dive on the legal dispute quickly leads to a discussion of judicial deference and the good ol' Political Question Doctrine.  Buckle-up for an extended talk about how these doctrinal threads do or should work together not just in Doe but in other contexts. Someone on this show still hasn't seen Black Panther, so we are not yet ready to do our review of it.  Instead, those who hang in till the end will be treated to NCAA Tournament Final Four projections made without the benefit of knowing anything about what the brackets will look like.  One doubts this will make their predictions any worse than they would have been anyway.... Happy spring break to all!
Mar 12, 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 decision. FISA, the FISCOR, and SCOTUS (we love acronyms!): join us for some fed courts nerdistry on the surprisingly-limited pathways for a FISCOR ruling to make it to SCOTUS (prompted by the pending ACLU/MFIA litigation seeking increased transparency for FISC opinions). Did HSPCI staff leak a Senator's text messages?  We check in on the growing tensions between SSCI and HPSCI. Last (well, last for serious stuff), we take the occasion of the recent Hope Hicks testimony to remind listeners how executive privilege invocations in Congress are supposed to work. Actually last, frivolity is back, albeit briefly (what an odd sentence).  Your mission, should you choose to accept it: What are the greatest TV dramas of all time?  Mini-series excluded, but doesn't have to be broadcast network TV.  Listen to the end to see if you agree with our take!  And, finally: please spread the word about the podcast!
Mar 05, 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 of Convening Authority Harvey Rishikof and his legal advisor Gary Brown (in the context of an unlawful command influence motion). Suing terrorists--and their banks:  a discussion of JASTA, the Anti-Terrorism Act, and the recent Second Circuit ruling in Linde v. Arab Bank. The Schiff Memo, the #Mehmo, and more...when will it all end? A new case for the Foreign Intelligence Surveillance Court of Review--an appeal by the government from a split en banc FISC ruling finding standing for the ACLU and MFIA to press a First Amendment claim to seek access to FISC rulings. And last, but not least, we review some recent letters from State and Defense, sent to Senator Kaine, reviewing Trump administration views on the legal bases for the US military role in Iraq and Syria. Alas, little frivolity this week.  But don't bet on that to continue!
Feb 27, 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 results The government's factual case against US/Saudi dual-citizen John Doe, currently in military detention in Iraq, and the question of how to calibrate the burden of proof when it is a citizen Mueller's Russia indictment and what it does (or does not) signify. All that, plus disparaging remarks about Olympic competitors who do not appear to be skilled, at all, in "their" sport.
Feb 21, 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 III court? Doe v. Mattis, the AmCit detainee case, now has two tracks.  On one, the D.C. Circuit in early April will have oral argument on the transfer issue.  On the other, the issues have now been joined on the merits back at the district court.  Spoiler alert: it's mostly about the 2001 AUMF and the Non-Detention Act. The #Mehmo and the Schiff Reply: Perhaps social media overreacted a bit to the Trump administration's refusal to declassify in full the current version of the Schiff Memo.  We predict a negotiated outcome resulting in the release of a modified version soon. Speaking of the Russians...Kaspersky Lab is suing up a storm!  Last December they sued DHS alleging a violation of due process when DHS banned federal entities from using Kaspersky products, and now they are suing the United States government as a whole alleging that a similar rule contained in the recent National Defense Authorization Act amounts to a...wait for it...Bill of Attainder.  We review both suits, and tell you which one has stronger prospects (relatively speaking). Thanks for listening!
Feb 13, 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 plea agreement? Doe v. Mattis status report: When is the government's return due, and what should we expect it to say? The government is appealing Judge Chutkan's order requiring 72-hours notice prior to transfer: what are the prospects for that appeal, and where does the Kiyemba II ruling fit into the mix? Of course, it wouldn't be the NSL Podcast without ill-informed digressions.  The Super Bowl provides fodder for plenty of that.  Listen to the bitter end, if you must, and you'll hear commentary on Justin Timberlake, the Han Solo prequel, Dirty Dancing, and the game that they played between the commercials.
Feb 06, 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, and the show more generally!
Feb 02, 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? 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.!
Jan 30, 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 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!
Jan 23, 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 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.
Jan 17, 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 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!
Jan 09, 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 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!).
Jan 03, 2018
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, 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!
Dec 27, 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 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!
Dec 19, 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 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!
Dec 12, 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 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.
Dec 05, 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 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!
Nov 28, 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), along with a whole slew of cyber-related sections.  One of them expands the long-running Mac Thornberry project of crafting notification rules running to SASC and HASC instead of SSCI and HPSCI) for certain low-visibility military activities (this time: "sensitive military cyber operations).  There also are similar oversight-facilitating provisions relating to the military's process for reviewing cyber "weapons" for international law compliance, and a refinement of the 10 USC 484 system for quarterly briefings on cyber operations.  All of which amounts to about .001% of the overall content of the NDAA.... The fourth topic involves a quick review of a recent Senate hearing on the authority of the president to launch America's nukes, which in turn leads to a quick review of the criminal law--and pardon law--issues raised by the Shane Harris Wall Street Journal story on Mike Flynn allegedly negotiating a $15m payment for help getting Gulen out of Pennsylvania and back to Turkey, perhaps even via rendition.  Ah, 2017. The sensible part of the show wraps with a quick reminder that there still is a U.S. citizen in military detention in Iraq, and associated litigation pending (Doe v. Mattis). But hey, we all know the real fun comes with the trivia at the end.  This week's topic?  Best movie sequels ever.  That, and also the worst.
Nov 16, 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 overseas captures, but no analogue domestically.  Yet there is a statute, from the USA Patriot Act in 2001 no less, that arguably could function as the domestic equivalent to the "slow boat" that undergirds the overseas-capture hybrid-model scenario.  Will it ever be used, and if so what might a constitutional challenge look like? With that out of the way, your intrepid hosts wrap up with a debate over the greatest comedy films of all time.   What's your top three?  Let us know on Twitter: @nslpodcast And, hey, while you are online, go ahead and give us a review!
Nov 07, 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...
Nov 01, 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, with the commission judge threatening contempt if the would-be-former defense attorneys do not show for a hearing on whether their ethical objections genuinely require withdrawal All that, plus slick baseballs undermining sliders at the World Series!
Oct 31, 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 issues, in relation to the recent ambush in Niger and subsequent talk about whether the government has kept Congress adequately informed about the geographic scope of its operations. Finally, they wrap with an overview of an obscure part of the pending National Defense Authorization Act bill, one dealing with the third-country effects of computer network operations.  Well, that's the last of the useful stuff.  Stick around to the bitter end, and you'll get an earful of NBA predictions too... (sigh).
Oct 24, 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 within the company's control but stored on a server overseas. Fourth, and staying with the technology & statutes theme, there's a fascinating "hack back" bill now pending in Congress, with the best acronym ever: the Active Cyber Defense Certainty Act, aka the ACDC Act.  For those about to legislate, we salute you.  And for those who want to know what this bill does, we...well, listen to the show for an introductory primer. Fifth, and briefly, an update on the status of ACLU v. Mattis, which is the habeas petition the ACLU filed on behalf of the still-unnamed U.S. citizen held as an enemy combatant in Iraq. If you stuck around this long, perhaps you do have an appetite for bad humor and unwitty pop culture observations.  In that case, you'll perhaps enjoy an argument about the right ranking of the Star Wars films, where the only disagreement turns out to be which was the very best and which the very worst.  Or perhaps you fancy using Star Wars as a teaching foil in class?  Stick around for some Law of Interstellar Armed Conflict discussions, not to mention the role of Greedo in illustrating the principles of anticipatory self-defense.  Han shot first, and that's all.
Oct 17, 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 case, its likely future course, and--especially--the procedural and substantive questions raised by the ACLU's attempt to act as John Doe's "next friend" in filing the petition on his behalf. Third, they note the White House's release of National Security Presidential Memorandum 7, which appears to call for the creation of an expanded interagency information-sharing architecture for distributing (and making possible more efficient analysis of) individual-specific data relating to various categories of national security threat.  Some such systems of course already exist, so it is difficult to say from the outside how much this will matter.  Still, the possibility that the initiative will lead to new entities having access to various types of intelligence is bound to raise privacy and related concerns of the same type as have been on display lately in connection with Section 702 data. Fourth, they close the serious part of the show with the decision of the Irish High Court in Data Protection Commissioner v. Facebook Ireland to refer to the Court of Justice of the European Union questions relating to whether there are adequate privacy safeguards when companies like Facebook transfer user data from there to the United States, bearing in mind the ability of the U.S. government to obtain access to that information in some contexts. Gluttons for punishment will listen on only to find themselves subjected, at no additional charge, to commentary on the MLB Playoffs, Steve Rushin's fabulous memoir Sting-Ray Afternoons (a sweet and funny Gen X tale of growing up in the 1970s), and the Monday Night Football/Last Jedi halftime collaboration.
Oct 10, 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-interesting (and potentially quite-controversial) issues that might arise in the event of an acquittal in the currently-ongoing prosecution of Abu Khattala (the alleged mastermind of the Benghazi attack).  The latter discussion focuses on the likelihood that Khattala would immediately come into ICE's custody pending removal, possibly with the aid of the not-yet-used Section 412 of the 2001 USA PATRIOT Act.  Such a result might well in turn result in a new form of indefinite, long-term, non-criminal detention, but then again the administration might also choose at some point to shift Khattala into military custody (perhaps within the United States, ala Jose Padilla, or perhaps even at GTMO). Towards the end of the show, Steve and Bobby tout the fascinating new podcast project from Prof. Eric Muller chronicling the human stories associated with the Japanese Internments and Removals of WWII, known as Scapegoat Cities.  Then they wrap up with a series of bone-headed predictions about the MLB playoffs, proving there are some serious gaps in their expertise...
Oct 04, 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 insulate the special counsel position (and, thus, Bob Mueller's investigation) from removal without adequate cause.  And then they close with an update on the Travel Ban litigation, noting that the critical issue at this juncture is whether SCOTUS will vacate the relevant circuit decisions or let them stand.  Well, they "close" with that in the sense that this is where a reasonable listener would tune out...but, for those who are gluttons for punishment, you can listen through to the end and be treated to musings on the new Star Trek series, the rapidly-unfolding NCAA basketball scandal, and the relevance (or not) of the Cavaliers signing Dwayne Wade. Caveat audientis (or something like that...)!
Sep 27, 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)!
Sep 19, 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!
Sep 14, 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 active-duty officers can serve as judges of the Court of Military Commission Review without violating an 1870 statute that creates a baseline rule against officers serving in civilian government positions.  Whew!  But, hey, if you are not into such questions, perhaps you'll stick around to find out which band Bobby saw last Friday night, and which football team greatly disappointed Steve on Sunday night!
Sep 12, 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 looking for a walk-through of the basic legal issues, and some speculation about how things may play out, this is what you need.  Oh, and as I mentioned, they seem to think they have some neat insights into college football, so if you like that sort of thing--or if you just want to hear them wallow in the pain of UT getting smacked by Maryland in its home opener--stick around for the final ten minutes.
Sep 05, 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 Interrogation Technique program.  Finally, and inevitably, they review the season finale of Game of Thrones (including a digression into such important questions as: do the wights possess human rights?).
Aug 30, 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 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 signed it three weeks ago).  This leads to a discussion of what we should all be looking for in whatever GTMO order emerges (for example, will there still be Periodic Review Boards?). Stay tuned on that subject.  Third, they discuss the D.C. Circuit's recent ruling requiring Judge Scott Silliman to recuse from the Court of Military Commission Review in relation to the 9/11-focused military commission case (a discussion that leads to a more-general conversation about whether it makes sense even to have the CMCR going forward). And fourth, they discuss the uber-fed-courtsy (yes, that is a phrase now!) question of whether the Judicial Power under Article III extends to injunctions directed to the President himself.  The key case there is Mississipi v. Andrew Johnson, and the principle is of self-evident importance--but not self-evident current vitality. But wait...don't stop at that point!  Surely you have not had enough Game of Thrones talk yet?  Whew, good.  Stick around for their review of the Zombie Rendition episode (aka GoT episode 6), in which they complain about temporal implausibilities, stupid strategies, and tactical blunders in the world of Westeros.
Aug 22, 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 arises out of the Benghazi attack, in which the defendant was captured in Libya and then transported to the U.S. (to face criminal charges) on a U.S. Navy vessel. Along the way, the defendant initially was interrogated without Miranda warnings, and then an FBI clean team eventually took over.  In today's opinion, the district court rejected the defendant's motion to suppress the "clean team" statements, rejecting the defendant's arguments involving delayed presentment, voluntariness, and compliance with Miranda.  Your hosts seem to agree: a win for the government on the surface, yes, but signs of trouble for future cases are there too.  This is followed by some quick responses to listener questions, and then, because they can't leave well-enough alone, they conclude with the inevitable segment on Game of Thrones.
Aug 16, 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 targets in the Philippines, as recent media reports have suggested might occur.  Fourth, they drag us all down into the weeds of treaty law--especially the "non-self-execution doctrine"--in connection with the Ninth Circuit's opinion rejecting an attempt by the Marshall Islands to get a court to declare the US government in violation of its obligation (under the Nuclear Non-Proliferation Treaty) to negotiate in good faith towards nuclear disarmament.  One might hope they'd be exhausted at that point, and end it there.  But no, they trudge on, sharing their "insights" about the latest episode of Game of Thrones at remarkable length. Happily, GoT's current season only has a few shows left, so soon your hosts will have to move on to something else!
Aug 08, 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's followed by a civil-military relations discussion, one that pays particular attention to the origins and evolution of the statute that forbids serving military officers from holding certain civilian government positions (a cheap ploy to bring the recent Trump administration personnel moves within the scope of the podcast? maybe so, my friend, maybe so). Last, and least, the good professors wrap with a spoiler-packed review of Game of Thrones Episode 3, which aired a few days ago. One of these guys thinks that Tyrion's reputation for strategic acumen is super-overrated...
Aug 01, 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 pathways to removal, each of which has its own set of legal and political complications. may be summer in Austin, but it's winter in Westeros. Inevitably, this leads Steve and Bobby to close out the episode with their oh-so-expert comments on the first two episodes of Game of Thrones Season 7.
Jul 25, 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--particularly the emergence of entities like AQAP and the Islamic State--have heightened questions regarding the continuing relevance of the AUMF.  Then they describe some of the proposed legislative fixes (and why they have not moved forward).  Then they...oh, I give up, you have the general idea, it's quicker just to listen!
Jul 17, 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 conversation? Finally, Vladeck and Chesney dig  into a trio of developments relating to military commissions at GTMO.  What did the Court of Military Commission Review recently say about the statute of limitations for war crimes, and why is that a hard question?  Why is Canada giving millions to Omar Khadr, and what is the controversy surrounding the military commission charge known as "murder in violation of the law of war"?  And what is up with a military commission judge calling a halt to proceedings because of...a boat?  Oh, and be sure to stay tuned to the end, when your hosts hand out their midseason MLB awards.  Just think, starting next week you are going to have to put up with them dissecting Game of Thrones episodes...ugh....
Jul 11, 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 manhunting operations attempting to capture Islamic State leaders in Syria, and the legal implications of accepting intelligence from and otherwise becoming enmeshed in detention centers run by the UAE in Yemen (in light of a story alleging torture at those centers).  Oh, and then there's an assessment of the legal implications of Paul Manafort making a post-hoc registration as a foreign agent.  All that, plus Steve rubs Bobby's nose in the fact that Chris Paul apparently is going to become a Rocket and not a Spur....
Jun 28, 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 dissection of what lies ahead in Game of Thrones Season 7.  Because, why not?
Jun 20, 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 operations, and--of course--the latest twists and turns in the ever-more-complex Travel Ban litigation.  Tune in, give us a review on iTunes and elsewhere, and spread the word to others!
Jun 13, 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 Supreme Court has granted cert. in Carpenter v. United States, which presents the question whether the collection of a sizeable amount of historical Cell Site Location Information (CSLI) from service providers is a search within the meaning of the Fourth Amendment, and if so whether a warrant is required.  Put in plainer terms: The Supreme Court will consider whether the Third Party Doctrine (from Smith v. Maryland) should apply to a circumstance in which new technologies enable information gathering of a kind and scale that might warrant (see what I did there?) a different outcome than Smith.  Finally, Steve and Bobby wrap the show by talking about some of their favorite foreign cities.
Jun 06, 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!
May 31, 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.  Tune in for Steve and Bobby's review and analysis of these important decisions in a somewhat-shorter-than-usual episode, as well as a quick recap of last night's U2 concert in Houston (part of the 30th-anniversary Joshua Tree tour; Bobby had a darn good time).
May 25, 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, alas, back in the 1850s).  Then it's a brief review of the recent airstrike U.S. forces conducted against an Iran-backed pre-regime force in Syria as those forces persisted in approaching an airbase used by U.S. forces there, distinguishing the legal from the policy questions that strike raised.  And finally, there are digressions galore, including a (very favorable) review of All Our Wrong Todays by Elan Mastai and celebration of the fact that Kawhi Leonard made the cut for the NBA MVP Final 3 (well, only Bobby celebrated because, as you may recall, they bet dinner on it).  Oh, the also *totally* forgot to follow-through on announcing the winner of last week's trivia contest, so watch the Twitter feed (@nslpodcast) for that, and stay tuned for it to be addressed on the show next week!
May 22, 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 to hang on until the end.  Be sure to share the word about this podcast if you are enjoying it; give us a review on iTunes and elsewhere, and join the conversation at @nslpodcast, @steve_vladeck, and @bobbychesney!  And be sure to come back next week, when we plan to have...wait for!
May 16, 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.
May 10, 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 it and spread the word to others!
May 09, 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.
May 03, 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 spending doctrine and the anti-commandeering rule in relation to DOJ efforts to bring "sanctuary cities" into line with federal policy; and to wrap things up Tyrion Lannister is toppled from his erstwhile status as the top dog in Steve's pantheon of outstanding TV fictional characters.  That, and Bobby claims he'll answer the question Andy Priest tweeted about, but then he just doesn't.
Apr 26, 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.
Apr 19, 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 whether to take up this case during its conference this Thursday).  Last, Alexander Hamilton makes a surprising but inspired Passover appearance.
Apr 11, 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 videotapes of force-feeding of Guantanamo hunger strikers, and a review of the principle of "unlawful command influence" in the context of the Bowe Bergdahlt court martial.  And just in case you weren't sure how geeky these guys are, they wrap with a too-long discussion of Battlestar Galactica (feels like it goes on for a few centars, but it's really just a few centons).
Apr 05, 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 the controversy over civilian casualties in Mosul, and a recent announcement by DOJ involving naturalization fraud committed by Iraqi refugees said to be linked to a terrible episode that occurred in Iraq in 2005 (involving US hostages).  Last, they take up a series of questions posed by listeners on Twitter; somehow it results in a discussion of Big Little Lies.
Mar 29, 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.
Mar 24, 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 materials from Supreme Court nominee Neil Gorsuch's time at DOJ, and then they wrap up with predictions about the NCAA tournament that almost certainly will prove to be wildly off.
Mar 17, 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 al-Nashiri.  Things don't get contentious until the end, when for better or worse they take up the NBA MVP debate.  Cornucopias also get a mention, for insufficient reasons.
Mar 08, 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.
Mar 02, 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?
Feb 21, 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...
Feb 16, 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.
Feb 09, 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.
Jan 31, 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.
Jan 25, 2017