The National Security Law Podcast

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.

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!

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???

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.

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!  

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!  

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!

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!

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…”  

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…]

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…

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!

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!

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…

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!

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.

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.

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?

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].”

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…

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…

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!

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…

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…

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!

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.

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…

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…

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.

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 harmony…today 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!  

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!

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.

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!

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!

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…

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?  

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.]

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!

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!

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!

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!

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.

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.

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!

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!

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…

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???  

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.

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.

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!