The National Security Law Podcast

In this week’s episode, your devoted hosts dig into a bonanza of national security law odds-and-ends. First up is an en banc decision by the Foreign Intelligence Surveillance Court of Review involving the standing of the ACLU and the Yale Media Freedom and Information Access Clinic to litigate a claimed First Amendment right of public access in relation to FISC opinions. This may not go anywhere in the end, but it’s definitely going to go further than the government wanted. Next comes the confusion surrounding a Justice Department letter indicating at least some willingness to dig into the Uranium One story and other related matters, which set the Twitterverse ablaze with concern recently. A new special counsel? Your hosts say: don’t bet on it. After that the show takes up the National Defense Authorization Act for Fiscal Year 2018, which should be signed into law soon. It has the usual GTMO transfer provisions (albeit with something that might be an interesting wrinkle), along with a whole slew of cyber-related sections. One of them expands the long-running Mac Thornberry project of crafting notification rules running to SASC and HASC instead of SSCI and HPSCI) for certain low-visibility military activities (this time: “sensitive military cyber operations). There also are similar oversight-facilitating provisions relating to the military’s process for reviewing cyber “weapons” for international law compliance, and a refinement of the 10 USC 484 system for quarterly briefings on cyber operations. All of which amounts to about .001% of the overall content of the NDAA…. The fourth topic involves a quick review of a recent Senate hearing on the authority of the president to launch America’s nukes, which in turn leads to a quick review of the criminal law–and pardon law–issues raised by the Shane Harris Wall Street Journal story on Mike Flynn allegedly negotiating a $15m payment for help getting Gulen out of Pennsylvania and back to Turkey, perhaps even via rendition. Ah, 2017. The sensible part of the show wraps with a quick reminder that there still is a U.S. citizen in military detention in Iraq, and associated litigation pending (Doe v. Mattis). But hey, we all know the real fun comes with the trivia at the end. This week’s topic? Best movie sequels ever. That, and also the worst.

Has it only been a week? Yeesh. Well, we are back! In this episode, Professors Vladeck and Chesney focus on three topics: The Mueller investigation and the prospect that Mike Flynn may be charged under the Foreign Agents Registration Act. The increasingly-complex saga of the withdrawn defense lawyers in the al-Nashiri military commission case at GTMO. Habeas petitions are sprouting all over the place, and the procedural complexity of the situation is growing by the day. An interesting legal and policy question is lurking out there: The use of the “hybrid model” (that is, military capture and initial interrogation, followed by long-term disposition via the civilian criminal justice system) in the Mustafa al-Imam case generated no complaints from the right, whereas the decision to use the civilian criminal justice system for Saipov certainly did. This highlights the fact that we have a comparatively stable system blending military and criminal law enforcement tools for overseas captures, but no analogue domestically. Yet there is a statute, from the USA Patriot Act in 2001 no less, that arguably could function as the domestic equivalent to the “slow boat” that undergirds the overseas-capture hybrid-model scenario. Will it ever be used, and if so what might a constitutional challenge look like? With that out of the way, your intrepid hosts wrap up with a debate over the greatest comedy films of all time. What’s your top three? Let us know on Twitter: @nslpodcast And, hey, while you are online, go ahead and give us a review!

We are back, one day after dropping episode 43, with an emergency podcast discussion the legal consequences of the horrific attack that occurred in New York City yesterday. The need for the podcast flows from the President Trump’s statements to the press today regarding the possibility of taking the perpetrator to Guantanamo, his criticisms of the criminal justice process, and statements from Senator Graham emphasizing the need to interrogate the perpetrator without counsel. Meanwhile, a military commission judge has held the JAG General who heads the defense operation there in contempt, confining him to quarters based on an episode in which the civilian defense team for al-Nashiri has withdrawn with his approval. It’s a complicated situation all around, but Professors Chesney and Vladeck are here to walk through it all in this special episode. Of course, they couldn’t help but add on, at the end, their views of the just-released AP Top 25 for college basketball…

It’s been a busy week in national security law! In Episode 43, Professors Chesney and Vladeck take on: Mueller-Time: Indictments against Manafort and Gates, and an even-more important plea deal. ACLU v. Mattis and the government’s filing in opposition to an order to show cause why ACLU should not get access to the US citizen held as an enemy combatant in Iraq. A new Benghazi case: United States v. Mustafa al-Imam, captured by US forces in Libya (with Libyan government permission/involvement) and now en route (slowly, presumably) back to US for civilian criminal prosecution. A quick note on the Senate Foreign Relations Committee’s hearing yesterday on AUMF issues (plus a related note on the federal statute — 18 USC 130f — that requires notification to the Senate and House Armed Services Committees when the military conducts (or supports a foreign partner on) a kill/capture mission outside a zone of active hostilities). The blow-up in the al Nashiri military commission, with the commission judge threatening contempt if the would-be-former defense attorneys do not show for a hearing on whether their ethical objections genuinely require withdrawal All that, plus slick baseballs undermining sliders at the World Series!

This week Professors Chesney and Vladeck start with a close look at Smith v. Trump, a case that seeks a judicial ruling on whether the Islamic State really falls within the scope of the 2001 AUMF. The case presents standing and political-question doctrine issues, and will be argued soon before the D.C. Circuit Court of Appeals. This leads into an update on ACLU v. Mattis (the attempt by ACLU to represent the still-unidentified US citizen held as an enemy combatant), as the court has issued an order to show cause (due Monday) why the government should not allow access-to-counsel at this stage. This is followed by an update on the Travel Ban litigation (giving rise to the title of this episode), and after that the upcoming Bowe Bergdahl sentencing (and, more to the point, the combination of Presidential commentary on the case and a statement from the White House emphasizing the importance of avoiding unlawful command influence). At that point, your hosts come back to AUMF-type issues, in relation to the recent ambush in Niger and subsequent talk about whether the government has kept Congress adequately informed about the geographic scope of its operations. Finally, they wrap with an overview of an obscure part of the pending National Defense Authorization Act bill, one dealing with the third-country effects of computer network operations. Well, that’s the last of the useful stuff. Stick around to the bitter end, and you’ll get an earful of NBA predictions too… (sigh).

If you were unsure about whether your hosts are geeks, this episode will help settle the question. But before we get to what Professors Chesney and Vladeck think they know but don’t really, here’s the stuff they actually do know something about! First, the Travel Ban. Buckle up, there’s a new nationwide TRO, out of Hawaii, enjoining enforcement of most of Travel Ban 3.0. Second, a double-shot of the Nashiri military commissions case. The Supreme Court denied cert., seemingly paving the way for that case to roll forward. But not so fast–all the civilian defense attorneys, including their death-penalty expert, have just quit, citing ethical quandaries arising from alleged government surveillance of attorney-client communications. Third, and speaking of surveillance, the Supreme Court did grant cert. in the Microsoft-Ireland spat, which raises the question whether a “(d) order” under the Stored Communications Act can compel a company in the U.S. to produce data that is within the company’s control but stored on a server overseas. Fourth, and staying with the technology & statutes theme, there’s a fascinating “hack back” bill now pending in Congress, with the best acronym ever: the Active Cyber Defense Certainty Act, aka the ACDC Act. For those about to legislate, we salute you. And for those who want to know what this bill does, we…well, listen to the show for an introductory primer. Fifth, and briefly, an update on the status of ACLU v. Mattis, which is the habeas petition the ACLU filed on behalf of the still-unnamed U.S. citizen held as an enemy combatant in Iraq. If you stuck around this long, perhaps you do have an appetite for bad humor and unwitty pop culture observations. In that case, you’ll perhaps enjoy an argument about the right ranking of the Star Wars films, where the only disagreement turns out to be which was the very best and which the very worst. Or perhaps you fancy using Star Wars as a teaching foil in class? Stick around for some Law of Interstellar Armed Conflict discussions, not to mention the role of Greedo in illustrating the principles of anticipatory self-defense. Han shot first, and that’s all.

In this week’s episode, Professors Chesney and Vladeck zero in on four recent developments involving law and national security. First, they explore the Supreme Court’s decision not to review the splintered decision of the en banc D.C. Circuit in Bahlul (in which a plurality of the Circuit concluded that it was constitutional for Congress to give military commissions the capacity to adjudicate a conspiracy charge, notwithstanding the government’s concession that conspiracy standing alone was not a violation of the international laws of war). They consider what this means for the commissions going forward, whether the rationale of the en banc ruling is binding or merely persuasive, and what if anything this portends for the still-pending Nashiri cert. petition. Second, they dig into the habeas corpus petition that the ACLU has filed on behalf of the still-unnamed U.S. citizen held by the U.S. military as an enemy combatant in Iraq. They grapple with the larger significance of the case, its likely future course, and–especially–the procedural and substantive questions raised by the ACLU’s attempt to act as John Doe’s “next friend” in filing the petition on his behalf. Third, they note the White House’s release of National Security Presidential Memorandum 7, which appears to call for the creation of an expanded interagency information-sharing architecture for distributing (and making possible more efficient analysis of) individual-specific data relating to various categories of national security threat. Some such systems of course already exist, so it is difficult to say from the outside how much this will matter. Still, the possibility that the initiative will lead to new entities having access to various types of intelligence is bound to raise privacy and related concerns of the same type as have been on display lately in connection with Section 702 data. Fourth, they close the serious part of the show with the decision of the Irish High Court in Data Protection Commissioner v. Facebook Ireland to refer to the Court of Justice of the European Union questions relating to whether there are adequate privacy safeguards when companies like Facebook transfer user data from there to the United States, bearing in mind the ability of the U.S. government to obtain access to that information in some contexts. Gluttons for punishment will listen on only to find themselves subjected, at no additional charge, to commentary on the MLB Playoffs, Steve Rushin’s fabulous memoir Sting-Ray Afternoons (a sweet and funny Gen X tale of growing up in the 1970s), and the Monday Night Football/Last Jedi halftime collaboration.

If you have ever wondered what statutes, constitutional principles, and judicial precedents come into play when the U.S. government contemplates transferring an American citizen from our military custody to the custody of another government, this is the episode for you. Building off news reports that the Trump administration is contemplating sending the as-yet-unnamed US citizen enemy combatant to Iraqi custody in order to face prosecution there, Professors Chesney and Vladeck spend much of this episode exploring the ins-and-outs of the legal issues that might arise in that case. They focus in particular on the non refoulement issue, with special attention to the Supreme Court’s 2008 Munaf v. Geren ruling as well as a statute known as FARRA. They precede that discussion with news that the Supreme Court has agreed to hear Steve’s cases involving military officers appointed to civilian office (see here for more), and they follow it with an extended review of the extremely-interesting (and potentially quite-controversial) issues that might arise in the event of an acquittal in the currently-ongoing prosecution of Abu Khattala (the alleged mastermind of the Benghazi attack). The latter discussion focuses on the likelihood that Khattala would immediately come into ICE’s custody pending removal, possibly with the aid of the not-yet-used Section 412 of the 2001 USA PATRIOT Act. Such a result might well in turn result in a new form of indefinite, long-term, non-criminal detention, but then again the administration might also choose at some point to shift Khattala into military custody (perhaps within the United States, ala Jose Padilla, or perhaps even at GTMO). Towards the end of the show, Steve and Bobby tout the fascinating new podcast project from Prof. Eric Muller chronicling the human stories associated with the Japanese Internments and Removals of WWII, known as Scapegoat Cities. Then they wrap up with a series of bone-headed predictions about the MLB playoffs, proving there are some serious gaps in their expertise…

Seriously, how did they manage not to say “posse comitatus” during this episode? Sigh. In this week’s episode, Professors Vladeck and Chesney do talk at length about various legal issues raised by the devastation in Puerto Rico, including the possibility of an Insurrection Act invocation. In addition, they renew attention to the as-yet-unnamed U.S. citizen who apparently remains in U.S. military custody as an enemy combatant in Syria or Iraq, urging the media to keep a focus on this important situation. On a related note, they also explore the significance of the Trump administration’s potential revisions to the Obama-era policy guidance regarding the use of lethal force outside of areas of “active hostilities.” From there, they pivot to a review of the special birthday party the Senate Judiciary Committee through to celebrate Steve’s birthday yesterday, which took the form of a hearing on the constitutionality and desirability of a pair of bills that would help to further insulate the special counsel position (and, thus, Bob Mueller’s investigation) from removal without adequate cause. And then they close with an update on the Travel Ban litigation, noting that the critical issue at this juncture is whether SCOTUS will vacate the relevant circuit decisions or let them stand. Well, they “close” with that in the sense that this is where a reasonable listener would tune out…but, for those who are gluttons for punishment, you can listen through to the end and be treated to musings on the new Star Trek series, the rapidly-unfolding NCAA basketball scandal, and the relevance (or not) of the Cavaliers signing Dwayne Wade. Caveat audientis (or something like that…)!

In this week’s episode, Professors Chesney and Vladeck explore three big national security law developments from the past few days. First up: the news that the FISC, on two separate occasions, issued orders authorizing surveillance of Paul Manafort’s communications. Second: the news late last week that an as-yet-unnamed American citizen fighting for the Islamic State in Syria is now in US military custody and being held as an enemy combatant. And third: an update on the travel-ban litigation as it moves into the Supreme Court. All this, plus a random smattering of frivolous commentary on everything from the UT-USC game to the new Star Trek series. (I know, I know, but they just insist on that stuff…don’t let it deter you from listening to the parts of the show when they actually know what they are talking about)!

We have a special treat in this off-cycle episode! NSA GC Glenn Gerstell is in Austin to speak to our students here at UT, and (no doubt against his better judgment) he agreed to sit for an interview with Professors Chesney and Vladeck. The conversation focuses in particular on the nature, operation, and criticisms of Section 702 collection authority. As you probably know, Section 702 is scheduled to expire at the end of December, and there is certain to be a fascinating, high-stakes Congressional fight over its renewal in the months ahead. Tune in for our discussion of targeting, minimization, “backdoor” searches, database queries, masking, unmasking, and many other key elements in the debate!

Will this year’s Supreme Court term be packed with cases relating to military courts? In this week’s show, Professors Chesney and Vladeck explore the possibility. The Supreme Court currently has before it an array of petitions for review involving military court questions. The Bahlul litigation presents a complex but deeply-important set of questions relating to the ability of the military commission system to adjudicate conspiracy charges, intermixed with procedural questions about the standard of review should the Court choose to get involved. The Nashiri litigation, for its part, ultimately presents the critical question of whether an armed conflict existed with al Qaeda pre-9/11, and the Supreme Court currently must determine whether that issue should be resolved pre-trial or if, instead, the process must unfold through trial first. And then there a mix of cases, including a large group of servicemembers who were convicted by court martial, presenting the question whether active-duty officers can serve as judges of the Court of Military Commission Review without violating an 1870 statute that creates a baseline rule against officers serving in civilian government positions. Whew! But, hey, if you are not into such questions, perhaps you’ll stick around to find out which band Bobby saw last Friday night, and which football team greatly disappointed Steve on Sunday night!

In today’s episode, Professors Chesney and Vladeck spend time with three legal topics (before spiraling off into some ill-informed commentary on the college football season). First, building off a report that FBI arrests of Islamic State supporters inside the US have declined significantly recently, they discuss why such a change may have occurred and what it signifies for the role of law enforcement in counterterrorism policy. Second, they check in on the progress (ahem) of the pre-trial proceedings in the military commission case involving the 9/11 conspiracy. The trial judge recently offered January 2019 as a trial date trial balloon, which leads your hosts into an extended discussion of the odds of that happening–and the many complications that factor into that question. Third, on the theory that decisions to enforce or not enforce various aspects of immigration law pertain to the larger topic of presidential power, they dive deep into the DACA controversy. If you are looking for a walk-through of the basic legal issues, and some speculation about how things may play out, this is what you need. Oh, and as I mentioned, they seem to think they have some neat insights into college football, so if you like that sort of thing–or if you just want to hear them wallow in the pain of UT getting smacked by Maryland in its home opener–stick around for the final ten minutes.

In this week’s episode, Professors Chesney and Vladeck take advantage of a relatively quiet week for national security law developments in order to range across a number of topics. Being in Texas, we are all quite focused on the terrible tragedy unfolding thanks to Hurricane Harvey, and so your hosts open with a survey of various legal issues that could have arisen in the context of this emergency (though, fortunately, none seem to have). Then, noting that today was the first day of class at Texas Law, they discuss whether their respective Constitutional Law courses will or should be different this year in light of controversies associated with President Trump. They also take note of the latest North Korean missile launch and use that as a basis for discussion the line between self-defense and offense–in relation to Japanese law. And they also comment on the surprise settlement in the case brought against the private sector psychologists who designed the CIA’s Enhanced Interrogation Technique program. Finally, and inevitably, they review the season finale of Game of Thrones (including a digression into such important questions as: do the wights possess human rights?).

Never a dull moment in 2017. In this week’s episode, Professors Vladeck and Chesney take on four topics (well, four relevant topics…do try to stay with them past their musings on home runs at the Little League World Series). First, they unpack the part of President Trump’s Afghanistan speech in which he promised to loosen “rules of engagement,” construing it as a pledge to further relax Obama administration policies regarding the scope of permitted targets in Afghanistan, the permissible roles for U.S. ground forces, and the range of situations in which permission must be obtained from POTUS or SecDef. They place those possible changes in context with similar adjustments in 2014 and 2016, and discuss their implications for the AUMF debate as well. Second, they note a report (by Charlie Savage and Adam Goldman) in the New York Times to the effect that President Trump is drawing close to signing a new executive order on the fate of Guantanamo (and, indeed, that he nearly signed it three weeks ago). This leads to a discussion of what we should all be looking for in whatever GTMO order emerges (for example, will there still be Periodic Review Boards?). Stay tuned on that subject. Third, they discuss the D.C. Circuit’s recent ruling requiring Judge Scott Silliman to recuse from the Court of Military Commission Review in relation to the 9/11-focused military commission case (a discussion that leads to a more-general conversation about whether it makes sense even to have the CMCR going forward). And fourth, they discuss the uber-fed-courtsy (yes, that is a phrase now!) question of whether the Judicial Power under Article III extends to injunctions directed to the President himself. The key case there is Mississipi v. Andrew Johnson, and the principle is of self-evident importance–but not self-evident current vitality. But wait…don’t stop at that point! Surely you have not had enough Game of Thrones talk yet? Whew, good. Stick around for their review of the Zombie Rendition episode (aka GoT episode 6), in which they complain about temporal implausibilities, stupid strategies, and tactical blunders in the world of Westeros.

In this week’s episode, Professors Chesney and Vladeck make a whole series of blatantly un-Mirandized statements about some of the latest national security law developments. First, they take up a number of questions relating to the events in Charlottesville. Was the murder an act of “domestic terrorism”? What does federal criminal law have to say about domestic terrorism? How does this situation compare to Monday’s news of a man in Oklahoma City who sought to set off a bomb ala Timothy McVeigh? And what issues arise when heavily-armed self-styled militias take to the streets in these settings? Second, they give a quick review of the controversial search warrant issued by a judge in Washington, DC, to the web hosting service Dreamhost (seeking information about visitors to a website that helped organize protests that turned violent during the Trump inauguration). And third, they explore a brand-new opinion from the district court in United States v. Abu Khatallah. That case arises out of the Benghazi attack, in which the defendant was captured in Libya and then transported to the U.S. (to face criminal charges) on a U.S. Navy vessel. Along the way, the defendant initially was interrogated without Miranda warnings, and then an FBI clean team eventually took over. In today’s opinion, the district court rejected the defendant’s motion to suppress the “clean team” statements, rejecting the defendant’s arguments involving delayed presentment, voluntariness, and compliance with Miranda. Your hosts seem to agree: a win for the government on the surface, yes, but signs of trouble for future cases are there too. This is followed by some quick responses to listener questions, and then, because they can’t leave well-enough alone, they conclude with the inevitable segment on Game of Thrones.

In this bizarrely-titled episode (ok, they pretty much all have bizarre titles, Professors Vladeck and Chesney take on four national security law developments from the past week. First, they explore the district court ruling in Salim v. Mitchell, in which the court rejects cross-motions for summary judgment in an Alien Tort Statute suit brought by former CIA detainees against the two psychologists who designed and helped implement the “enhanced interrogation techniques” program. Second, they unpack the meaning and significance of last week’s press observation held by Attorney General Sessions, in which he warned that DOJ and FBI will be ramping up their anti-leak efforts (of course the real lesson for reporters from this whole episode is: probably better not to call these professors, lest they talk your ear off about Game of Thrones). Third, they offer some preliminary thoughts on the legal issues that will arise if the US does begin using airstrikes against Islamic State targets in the Philippines, as recent media reports have suggested might occur. Fourth, they drag us all down into the weeds of treaty law–especially the “non-self-execution doctrine”–in connection with the Ninth Circuit’s opinion rejecting an attempt by the Marshall Islands to get a court to declare the US government in violation of its obligation (under the Nuclear Non-Proliferation Treaty) to negotiate in good faith towards nuclear disarmament. One might hope they’d be exhausted at that point, and end it there. But no, they trudge on, sharing their “insights” about the latest episode of Game of Thrones at remarkable length. Happily, GoT’s current season only has a few shows left, so soon your hosts will have to move on to something else!

This week’s episode certainly has a military theme. Professors Chesney and Vladeck start off with a surprisingly (or is it disturbingly?) lengthy discussion of the writ of mandamus litigation currently pending in the D.C. Circuit Court of Appeals in connection with military commission proceedings. It’s like sitting in a Fed Courts class, except with worse jokes (doesn’t matter who your professor is, she or he surely was funnier than this). Then again, the topic turns out to be rather important for the larger questions surrounding the ability of the military commission system to move forward, so maybe it’s worth it. Maybe. Stick around, though, and you’ll be treated (again, probably not the right word) to an overview of the IHL/LOAC issues that were on the table at the recent Transatlantic Dialogue on International Law and Armed Conflict, which will give you a bit of perspective on the sort of questions that law of war experts think are especially interesting these days. That’s followed by a civil-military relations discussion, one that pays particular attention to the origins and evolution of the statute that forbids serving military officers from holding certain civilian government positions (a cheap ploy to bring the recent Trump administration personnel moves within the scope of the podcast? maybe so, my friend, maybe so). Last, and least, the good professors wrap with a spoiler-packed review of Game of Thrones Episode 3, which aired a few days ago. One of these guys thinks that Tyrion’s reputation for strategic acumen is super-overrated…

In this week’s episode, Professors Chesney and Vladeck focus on two subjects: the extradition of Ali Damache and what it might portend for Trump administration counterterrorism policy, and the slate of issues surrounding the potential removal of Attorney General Sessions. The Damache case is interesting on its own terms in light of the underlying crime (a plot to kill the Swedish artist Lars Vilk, including the recruitment of three Americans to the conspiracy), and also because Ireland previously refused extradition of Damache on the ground that he would likely end up in the SuperMax in Colorado and there experience inhuman and degrading treatment (in the form of prolonged solitary confinement). Spain had no such qualms, and now Damache faces charges in Philadelphia. Meanwhile, speculation is mounting that President Trump is eager for Attorney General Jeff Sessions to resign, and that Sessions might be fired if he won’t go of his own accord. Your hosts walk through the three major pathways to removal, each of which has its own set of legal and political complications. Finally…it may be summer in Austin, but it’s winter in Westeros. Inevitably, this leads Steve and Bobby to close out the episode with their oh-so-expert comments on the first two episodes of Game of Thrones Season 7.

Want a thorough backgrounder on the 2001 Authorization for Use of Military Force? This is the episode for you. (This also is the episode for you if what you want, instead, is an hour of legal blather followed by five minutes of speculation about Season 7 of Game of Thrones). The “AUMF” is the key statute on which the government relies for its post-9/11 uses of force relating to terrorism, and it has been the source of controversy and debate for the better part of the past sixteen years. This week’s episode focuses exclusively on it. Professors Vladeck and Chesney first explain how it fits into larger legal debates about the separation of powers in our system. Next, they review some of the key historical developments leading to its passage. Then they describe the fight in September 2001 over how broad it ought to be. Then they talk about key legal rulings construing its scope in the years that followed. Then they talk about how the evolving circumstances of counterterrorism–particularly the emergence of entities like AQAP and the Islamic State–have heightened questions regarding the continuing relevance of the AUMF. Then they describe some of the proposed legislative fixes (and why they have not moved forward). Then they…oh, I give up, you have the general idea, it’s quicker just to listen!

In today’s episode, Professors Chesney and Vladeck focus on three sets of issues. First, they explore the D.C. Circuit’s June 30th ruling in Jaber v. United States, in which the court on political question grounds affirmed dismissal of a suit seeking damages in relation to a 2012 drone strike in Yemen. If you are into the political question doctrine, well, that’s kind of scary but the important thing is that you’ll enjoy the discussion. If you don’t enjoy getting into the legal weeds of justiciability, that probably reflects well on you but you will hate this part of the episode. Moving on… Next, your hosts debate the criminal law implications of recent revelations about a meeting between a Russian lawyer and Donald Trump, Jr. (as well as Paul Manafort and Jared Kushner), involving an expected offer by the Russian to give derogatory information about the Clinton campaign. Did it violate campaign finance laws? Is the real legal story here about failing to disclose the conversation? Finally, Vladeck and Chesney dig into a trio of developments relating to military commissions at GTMO. What did the Court of Military Commission Review recently say about the statute of limitations for war crimes, and why is that a hard question? Why is Canada giving millions to Omar Khadr, and what is the controversy surrounding the military commission charge known as “murder in violation of the law of war”? And what is up with a military commission judge calling a halt to proceedings because of…a boat? Oh, and be sure to stay tuned to the end, when your hosts hand out their midseason MLB awards. Just think, starting next week you are going to have to put up with them dissecting Game of Thrones episodes…ugh….

Had you seen the word “limitrophe” before Justice Breyer used it in his dissent in Herndandez v. Mesa? Neither had Professors Vladeck and Chesney, but that doesn’t stop them from exploring the Supreme Court’s action in that cross-border shooting case, with its implications for Bivens, qualified immunity, and the extraterritorial application of the Fourth Amendment. Nor does Travel Ban fatigue stop them from unpacking all the details in Trump v. IRAP, the Supreme Court’s per curiam ruling partially lifting the nationwide preliminary injunctions involving President Trump’s travel-ban order. Completing the SCOTUS trifecta, your hosts also flag the cert. grant in a case involving Persian antiquities given to Indiana Jones in the 1930s…well, sort of, you have to listen to find out what that’s all about. In the back half of the episode, discussion turns to the sudden appearance of military commission charges against Hambali, the GTMO implications of a recent story about SOF manhunting operations attempting to capture Islamic State leaders in Syria, and the legal implications of accepting intelligence from and otherwise becoming enmeshed in detention centers run by the UAE in Yemen (in light of a story alleging torture at those centers). Oh, and then there’s an assessment of the legal implications of Paul Manafort making a post-hoc registration as a foreign agent. All that, plus Steve rubs Bobby’s nose in the fact that Chris Paul apparently is going to become a Rocket and not a Spur….

In today’s episode, Professors Chesney and Vladeck discuss the Supreme Court’s decision in Ziglar v. Abbasi in more detail than you could possibly want. What’s that one even about, you ask?Damages for alleged violations of the Constitution arising out of the massive post-9/11 immigration sweep. Let’s just say it was not a good result for the plaintiffs, nor for fans of Bivens doctrine (poor Steve!). Next comes both an international law and domestic law analysis of the episode on Sunday when a US aircraft shot down a Syrian Air Force jet. How does the unwilling/unable doctrine match up with the right of a sovereign government to use force against a non-state actor rebelling against it, where that non-state actor is also engaged in coalition operations against the Islamic State? And does either the 2001 AUMF or Article II carry with it authority to defend coalition partners? Finally, there is an update on the Travel Ban litigation, followed by a spoiler-laden, rambling dissection of what lies ahead in Game of Thrones Season 7. Because, why not?

In this episode, Professors Vladeck and Chesney come up with a tongue-twister of a title while exploring the legal fallout from the Comey testimony last week, including discussions of (1) whether Comey’s actions were illegal (hint: they weren’t), (2) whether executive privilege attached to his conversations with Donald Trump (hint: not really), and (3) what would it look like if the president decides to try to fire Bob Mueller–or even abolish the office of the special counsel. Your hosts also find time to talk about the recent arrest of two Hezbollah operatives inside the United States (with commentary on the role the material support statute plays in such cases), a recent airstrike in Somalia that DOD says took place under color of the recent policy decision to categorize Somalia as an area of active combat operations, a new bill from the House Armed Services Committee that would require DOD to give notice to HASC and SASC when conducting certain offensive (or active defense) cyber operations, and–of course–the latest twists and turns in the ever-more-complex Travel Ban litigation. Tune in, give us a review on iTunes and elsewhere, and spread the word to others!

In this episode, Professors Chesney and Vladeck have a full plate. The arrest of a contractor named Reality Winner (for having stolen classified information relating to Russian efforts to hack a voting-machine system and providing that information to the Intercept) provides the basis for a wide-ranging conversation about the Espionage Act, the First Amendment, and associated policy and legal issues. Naturally this also leads to previews of Jim Comey’s upcoming Congressional testimony, discussion of Jared Kuschner’s attempt to establish a communications channel with Moscow using Russian government channels, and notes on the latest developments with Mike Flynn. That in turn leads to a detailed assessment of the prospects for the Supreme Court to take review of the Fourth Circuit’s Travel Ban ruling and to stay the various injunctions associated with the Travel Ban (the government having recently filed applications relating to all of this). But they save the best for last: the Supreme Court has granted cert. in Carpenter v. United States, which presents the question whether the collection of a sizeable amount of historical Cell Site Location Information (CSLI) from service providers is a search within the meaning of the Fourth Amendment, and if so whether a warrant is required. Put in plainer terms: The Supreme Court will consider whether the Third Party Doctrine (from Smith v. Maryland) should apply to a circumstance in which new technologies enable information gathering of a kind and scale that might warrant (see what I did there?) a different outcome than Smith. Finally, Steve and Bobby wrap the show by talking about some of their favorite foreign cities.

This episode is a bit different than normal. Instead of tearing through the latest developments in the wide world of national security law, Professors Vladeck and Chesney instead provide a deep-dive overview of military commissions. The explain what that label does and does not refer to, survey the pre-9/11 history (with an emphasis on key Supreme Court decisions like Ex parte Milligan and Ex parte Quirin), identify the key issues raised by the military commission system established after 9/11, track how those issues evolved over time (as the executive branch tinkered with the rules, as the courts weighed in, and as Congress ultimately intervened in 2006 and 2009), and review the state of currently-pending litigation challenging today’s system. If you’ve been looking for a short-and-sweet way to understand what all the fuss is about, this is the episode for you!

It has only been a few days since Episode 19, but Steve and Bobby are worried that fellow national security law geeks won’t have enough @nslpodcast to enjoy during long Memorial Day Weekend roadtrips. That, plus they want to make sure you are up to speed on two big new rulings by the Fourth Circuit Court of Appeals, both of which went against the Executive Branch. First, the en banc Fourth Circuit today issued IRAP v. Trump, in which a majority of the Court agreed to uphold the nationwide injunction a trial judge had issued against the second version of the Trump Administration’s immigration-related executive order (the decision focuses on the Establishment Clause challenge). Second, a Fourth Circuit panel on Tuesday ruled in Wikimedia Foundation v. NSA/CSS that Wikimedia pled sufficient facts to survive the government’s motion to dismiss on standing grounds, in connection with a suit that challenges the Section 702 Upstream collection program on Fourth Amendment grounds. Tune in for Steve and Bobby’s review and analysis of these important decisions in a somewhat-shorter-than-usual episode, as well as a quick recap of last night’s U2 concert in Houston (part of the 30th-anniversary Joshua Tree tour; Bobby had a darn good time).

School’s out for summer…but the National Security Law Podcast keeps trucking along. In Episode 19, we find that the suddenly-student-less professors have used their newfound free time to…wait for it…add music to their intro. And just in case that brief riff is not enough, Chesney and Vladeck do go on to discuss some actual law and policy matters. They start with the appointment of Bob Mueller as a “special counsel,” and go into considerable detail on the nature and origins of that particular office (contrasting it with the more-familiar “Independent Counsel” of Whitewater fame). This leads, inevitably, to a discussion of Mike Flynn invoking the Fifth Amendment in relation to a congressional subpoena for documents (from the Senate Select Committee on Intelligence). Among other things, they survey SSCI’s options for enforcement of its subpoena, noting along the way that the “inherent contempt” power is less fun without ye’ old Capitol Jail (converted into a dining hall, alas, back in the 1850s). Then it’s a brief review of the recent airstrike U.S. forces conducted against an Iran-backed pre-regime force in Syria as those forces persisted in approaching an airbase used by U.S. forces there, distinguishing the legal from the policy questions that strike raised. And finally, there are digressions galore, including a (very favorable) review of All Our Wrong Todays by Elan Mastai and celebration of the fact that Kawhi Leonard made the cut for the NBA MVP Final 3 (well, only Bobby celebrated because, as you may recall, they bet dinner on it). Oh, the also *totally* forgot to follow-through on announcing the winner of last week’s trivia contest, so watch the Twitter feed (@nslpodcast) for that, and stay tuned for it to be addressed on the show next week!

The guys came back to the office tonight for a rare evening recording session, inspired by a combination of hot-off-the-presses news about the president talking out of turn to the Russians, lack of interest in the Wizards-Celtics game, and a general inability to find another time to record this week. And what’s in it for you? An extended discussion of the significance of the report earlier this evening to the effect that President Trump may have shared highly-sensitive classified information with his Russian guests in the Oval Office last week, some follow-up discussion of the Comey firing (with an emphasis on the situation of Rod Rosenstein), an update on the litigation challenging the executive order on immigration, a review of the problems associated with the rapidly-spreading WannaCry ransomware, an attempt by Bobby to steer the conversation away from Spurs-Warriors Game 1 in favor of Spurs-Rockets Game 6 (quickly rebuffed by Steve), and a trivia question for those who manage to hang on until the end. Be sure to share the word about this podcast if you are enjoying it; give us a review on iTunes and elsewhere, and join the conversation at @nslpodcast, @steve_vladeck, and @bobbychesney! And be sure to come back next week, when we plan to have…wait for it…music!

Yes Episode 16 just dropped yesterday, but given the firing of Jim Comey we felt duty bound to get back to the microphones ASAP. And so here you will find Bobby and Steve reviewing and debating the legal and policy backdrop to, and fallout, from yesterday’s shocking news. Tune in for a discussion that covers the power of the president to appoint and remove the FBI Director, the implications of the firing for a variety of ongoing investigations, and much more.

In this episode, Professors Vladeck and Chesney walk listeners through a recent proposal by Rep. Adam Schiff to replace the 2001 and 2002 AUMFs with a new “consolidated” AUMF that would explicitly name the Islamic State while also tweaking current authorities in certain interesting ways. Before that, however, they find plenty of time to argue about the significance of the latest twists and turns involving Sally Yates, Mike Flynn, and Jim Comey, and to forecast the next steps in the unfolding litigation surrounding the Executive Order on immigration. The episode also checks in with some recent developments involving ground forces in Somalia and Afghanistan, not to mention the National Emergencies Act and its application in Syria, Yemen, and Central African Republic. But all that is mere prelude, of course, to an extended appreciation for the music of the Indigo Girls. The episode may not be Closer to Fine, but hopefully you’ll enjoy it nonetheless. And if you do, please rate it and spread the word to others!

In this surveillance-heavy episode, Professors Chesney and Vladeck dig into a raft of news about foreign-intelligence collection authorities. They open with an overview of how Section 702 collection authority works, and then unpack the recent news that NSA is dropping the “about” collection component of Upstream collection under 702. They explain it all, including the obvious and perhaps not-so-obvious reasons for this development. This leads them next to the ODNI’s 2016 Transparency Report, which just dropped and provides a host of fascinating data points about not only 702 but an array of other surveillance/collection authorities. Stay tuned to here them try to convince you that 150 million is not actually a big number! As your reward, you’ll then get a breakdown of an array of recent and looming Supreme Court developments (cell-site data, anyone?), and a wrap-up segment that only Val Kilmer could love.

In this episode, Professors Chesney and Vladeck run through the array of potential criminal charges against Julian Assange and Wikileaks (in light of recent rumblings that DOJ has revived that possibility), and they discuss the prospects for the First Amendment objections that would surely follow. This leads into a discussion of the charges that Mike Flynn one day might face, and that in turn prompts a disagreement about what to make of the White House letter rebuffing requests for information submitted by the House Government Oversight Committee. In other news, the Supreme Court denied cert. in connection with the ACLU attempt to use FOIA to acquire a complete copy of the SSCI interrogation investigative report (aka the “Torture Report”); the Administrative Office for the U.S. Courts released a surprising statistic about applications under Section 702 (with implications for the inquorate PCLOB); a news alert triggers an impromptu discussion of the intersection of conditional spending doctrine and the anti-commandeering rule in relation to DOJ efforts to bring “sanctuary cities” into line with federal policy; and to wrap things up Tyrion Lannister is toppled from his erstwhile status as the top dog in Steve’s pantheon of outstanding TV fictional characters. That, and Bobby claims he’ll answer the question Andy Priest tweeted about, but then he just doesn’t.

Listeners who are tired of listening to just Professors Vladeck and Chesney on this show can take heart! This week they are joined by special guest Matt Tait, better known online as Pwn All the Things. Matt’s presence leads to an extended discussion of the Shadowbrokers dump of exploits allegedly stolen from NSA, the US government’s Vulnerabilities Equities Process, and much more. Meanwhile, there’s a lot happening in the realm of immigration, with a denial of cert regarding a key Third Circuit case (Castro) and the first publicly-reported deportation in a DACA situation. Steve and Bobby also take note that the SOF mission in Uganda–hunting Kony and the Lord’s Resistance Army for the past five years, and setting off important War Powers Resolution issues early on–recently came to an end. Finally: if you wondered which team Steve roots for in the English Premier League, you have to listen all the way through till the end.

In this episode, Professors Chesney and Vladeck go deep into the weeds regarding the legal issues raised by President Trump’s decision to launch missiles at the Shayrat Airfield in Syria, in the wake of the sarin gas attack in Idlib. They discuss that decision in comparison to the 2011 decision by President Obama to use airstrikes in Libya, and along the way grapple with separation of war powers issues, AUMFs, the UN Charter, and the Responsibility to Protect (R2P). After that extensive discussion, they turn their attention to the controversial (and quickly defeated) attempt by Customs and Border Protection to force Twitter to reveal the identity of the user behind @ALT_USCIS (a mock-account that has been critical of administration immigration policy), and they explore the Third Circuit’s Castro decision on the ability of non-citizens to invoke habeas jurisdiction when they are present inside the United States but without authorization (since the Supreme Court will be considering whether to take up this case during its conference this Thursday). Last, Alexander Hamilton makes a surprising but inspired Passover appearance.

In today’s episode, Professors Vladeck and Chesney come to grips yet again with surveillance law and policy issues thanks to the ever-fascinating Trump/Russia story, this time accounting for the President’s accusation that then-National Security Advisor Susan Rice committed a crime. After droning on and on about targeting, minimization, incidental collection, masking, unmasking, and leaking, the professors pivot briefly to Jim Comey’s secret Twitter account and also the removal of Steve Bannon from the list of NSC participants (neither of those stories are really national security *law* stories, they are quick to admit, but you get what you pay for…). From there it’s back to Guantanamo, where the Court of Military Commission Review has hinted that it might not proceed to adjudicate a former detainee’s appeal from a conviction given that the fellow is now in the field with AQAP. That’s followed by a discussion of a new D.C. Circuit opinion on the right of the public to see videotapes of force-feeding of Guantanamo hunger strikers, and a review of the principle of “unlawful command influence” in the context of the Bowe Bergdahlt court martial. And just in case you weren’t sure how geeky these guys are, they wrap with a too-long discussion of Battlestar Galactica (feels like it goes on for a few centars, but it’s really just a few centons).

In this hour-long episode, Professors Steve Vladeck and Bobby Chesney open by unpacking the ins-and-outs of two Guantanamo military commissions cases currently seeking Supreme Court review: the al-Nashiri case (which could give the Court a chance to determine whether an armed conflict existed with al Qaeda prior to 9/11) and Bahlul (which could give the Court a chance to settle, at long last, whether the commissions can adjudicate offenses that do not count as violations of the law of armed conflict). Well, actually, they open by admitting how bad their NCAA brackets turned out to be. But nevermind that. After the military commission stuff, they go on to describe an interesting development at the FISC regarding the standing of the ACLU, and they explain the doctrinal rules surrounding executive privilege claims in light of the dispute between Sally Yates and the Trump White House regarding her prospective testimony about Mike Flynn. They also find time to address the impact of the controversy over civilian casualties in Mosul, and a recent announcement by DOJ involving naturalization fraud committed by Iraqi refugees said to be linked to a terrible episode that occurred in Iraq in 2005 (involving US hostages). Last, they take up a series of questions posed by listeners on Twitter; somehow it results in a discussion of Big Little Lies.

In this episode, [USperson 1] and [USperson 2] discuss whether the law was violated by [USperson 3] when [he/she] spoke to [USpersons 4-17] about alleged surveillance of [USperson 18] or perhaps various [USpersons] working for [USperson 18]’s campaign. They also discuss the appearance at [USuniversity 1] by [USperson 19] in which [he/she] did not talk about [USperson 18], but did have lots of interesting stuff to say about the “going dark” debate. [USperson 1] and [USperson 2] also dig into the question of denaturalization of convicted terrorists, and whether this portends an uptick in such efforts or even an eventual move towards actual expatriation legislation for such cases. Finally, they manage to talk about Ed Sheeran, Game of Thrones, and the impending return of [USperson 20’s] show VEEP, in which art increasingly imitates life.

Episode 8 (about 58 minutes long) finds Professors Vladeck and Chesney discussing the legal, policy, and institutional issues raised by reports that President Trump has authorized CIA to resume control of drone operations in some circumstances, and that he also has added certain parts of Yemen and Somalia to the current list of zones of active hostilities. They also provide an update on litigation relating to the revised refugee/travel executive order. In addition, they take up the topic of “proxy detention” of terrorism suspects, fleshing out the concept and its legal implications. From there they talk about a recent jury conviction of an al Qaeda member, a person whose circumstances might have left him prosecuted instead by a military commission had he been captured earlier (and had Italy not insisted on precluding such a result, as a condition of extraditing the defendant). Last but not least, they note (but don’t get terribly exercised by) the release of security-related materials from Supreme Court nominee Neil Gorsuch’s time at DOJ, and then they wrap up with predictions about the NCAA tournament that almost certainly will prove to be wildly off.

In this episode, Professors Chesney and Vladeck live up to their new motto (see the episode title) by wading into the confusion surrounding a pair of recent presidential claims with significant national security law implications: President Trump’s claim that the Obama administration wiretapped him (or his campaign), and his allegation about the “GTMO recidivism” rate as between the Bush and Obama administrations. This in turn leads to a discussion of the “Vault7” dump by Wikileaks of information on CIA tools for accessing iPhones, Android devices, and so forth, and from there they discuss the new immigration executive order as well (disagreeing as to its litigation prospects). With time running short, they move on to a lightning round touching on the draft Active Cyber Defense Certainty Act (that’s right, it’s the “AC/DC Act”), and an important but little-noticed military commission ruling that seems likely to result in four CIA officers having to testify about the interrogation of al-Nashiri. Things don’t get contentious until the end, when for better or worse they take up the NBA MVP debate. Cornucopias also get a mention, for insufficient reasons.

In this episode, Professors Vladeck and Chesney get into the weeds of the controversy surrounding the statements Attorney General Sessions made during his confirmation process concerning contacts with Russians. Is there a credible case for perjury here? They don’t seem to agree, but you’ll have to listen to find out where they part ways. They also foreshadow future discussions regarding the debate that will occur this year regarding “Section 702” renewal, as well as the Privacy and Civil Liberties Oversight Board. As usual, things come apart at the end, especially when Game of Thrones enters the picture.

In this episode, Professors Chesney and Vladeck consider whether the Supreme Court is poised to use a border-shooting case (Hernandez v. Mesa) to expand Fourth or Fifth Amendment rights for non-citizens outside the United States, and what this might mean for other scenarios ranging from drone strikes to SIGINT collection and network investigative techniques the FBI might use with overseas effect. They then turn their attention to the fight against the Islamic State in Mosul, exploring the evolving role of U.S. ground forces there. Next, they provide a detailed update on four sets of cases involving the military commission system. Finally, they spiral out of control (and coherence) with their views on how to improve the NBA all-star game. Seriously, guys?

In this episode, Professors Vladeck and Chesney come to grips with a number of legal issues raised by the Mike Flynn story. What the heck is the Logan Act and was it perhaps violated? What about the possibility of a charge for making false statements to the FBI? Was the underlying surveillance lawful? Were minimization rules violated? What about the folks who leaked the story? After all that, the conversation swerves into a preview of the Hernandez case (which will be argued at the Supreme Court next Tuesday and presents questions about the application of the Fourth and Fifth Amendments to non-citizens outside the United States, inter alia) and a discussion of what might happen soon with respect to the Periodic Review Board process for Guantanamo detainees. At that point, the conversation goes entirely off the rails as the guys turn their attention to fantasy baseball…

In this episode, Professors Chesney and Vladeck dive deep into the latest iteration of the Trump Administration’s draft executive order on military detention, Guantanamo, and the Islamic State, a task that leads them into an extended discussion of: the legal consequences of bringing an Islamic State detainee to GTMO, the geographic reach of habeas corpus, the fuzzy caselaw on military detention applied to American citizens, and irrelevant thoughts on the greatness of the San Antonio Spurs and the sadness of Manchester By the Sea.

In this episode, Professors Vladeck and Chesney focus on two major developments: the Trump Administration’s sudden decision to suspend entry into the United States for persons hailing from seven countries, and a rare boots-on-the-ground raid conducted by U.S. Special Operations Forces against an AQAP compound in Yemen. They close by offering worthless Super Bowl predictions.

In the first episode, Professors Bobby Chesney and Steve Vladeck walk listeners through some of the key issues raised by an alleged draft executive order on interrogation, detention, and prosecution of terrorism suspects. They also find time to speculate about the playoff prospects of the New York Mets.