The National Security Law Podcast

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….

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.

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!

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!

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 gift…so, 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!).

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?

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

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!

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!

Hey, we’re back on our weekly schedule! How ’bout that…now 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 [email protected] (.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)

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)!

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!)

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….

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)!

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!

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 Vladeck…in 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)!

We’re not a biweekly show, we promise! It just seems that way sometimes…like 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!

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

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.

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!

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…

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.

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…  

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?

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).

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.

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?

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!

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.

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.

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 something…is anyone watching??? And then there was the season finale of Westworld. It’s like they just ran out of good ideas…

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.

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.

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!  

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 balloon…one 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!

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.

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: https://utexas.app.box.com/v/NSLepisode160 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 today…to 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!

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!

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!

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!

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!

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.

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!

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!

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!

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.

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…

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.

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!

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….