Episode 149: This Podcast Will Not Serve as a Notification to Anyone About Anything
Not surprisingly, this weeks episode focuses entirely on the set of legal and policy questions raised by the airstrike that killed, among other, the Iranian general Qassim Soleimani in Iraq. But of course there is still frivolity, too, as the show finishes with discussion of ... Frozen II.
6 Jan 2020
Episode 71: Everyone Knows It Is Saudi Arabia!!!
We have much to discuss in the world of national security and law this week, including but not limited to the worst-kept secret in the world. And we have some grade-A frivolity if you are able to stay tuned to the end. To wit: Doe v. Mattis and the district court ruling enjoining the government from transferring Doe to Saudi Arabia. Wait, what's that? The identity of the receiving state is a secret? Except that Doe is a Saudi citizen and there are multiple points where the briefing reveals that the plan in question is to send Doe back to Saudi Arabia. Ah well. We've got an extensive discussion of the good and the bad about Judge Chutkan's ruling on the injunction, functioning also as a preview of the oral argument that will occur this Friday morning. The capture of 9/11-related suspect Mohamed Haydar Zammar: another high-profile captive with European citizenship in SDF custody in Syria, adding to the importance of determining what will become of those detainees for the long term. News of two former GTMO detainees who had been transferred to Senegal, but whom Senegal then sent to Libya--at which point they have disappeared. Meanwhile, another 9/11-linked individual (Mohammed al Qhatani) is seeking to use habeas jurisdiction to press for an external medical review of his circumstances. In Trumplandia, we've got heavily-hyped allegations of classified information in memos Jim Comey wrote; a sprawling lawsuit filed by the DNC against an array of defendants including Russia, the GRU, Guccifer 2.0, Julian Assange, Roger Stone, Wikileaks, Don Jr., Jared, the Trump Campaign itself, and then some. It raises some interesting Foreign Sovereign Immunities Act questions. An update on the gradual progress of the Special Counsel protection legislation, and the prospect of an interesting amendment from Senator Grassley. We also draw attention to this very handy resource mapping the reactions of various states to the US/UK/FR missile strikes against Syria.Best (or worst) of all, however, is our finale, as we have an uber-geeky breakdown of a critical doctrinal dispute, a question of categorical definition put in issue by Billboard announcing its list of 100 greatest "boy band" songs of all time. What are the necessary and sufficient conditions to qualify as that kind of band? That's all for now; bye bye bye!
24 Apr 2018
Episode 26: The Impenetrable Podcast Unit
In today's episode, Professors Chesney and Vladeck focus on three sets of issues. First, they explore the D.C. Circuit's June 30th ruling in Jaber v. United States, in which the court on political question grounds affirmed dismissal of a suit seeking damages in relation to a 2012 drone strike in Yemen. If you are into the political question doctrine, well, that's kind of scary but the important thing is that you'll enjoy the discussion. If you don't enjoy getting into the legal weeds of justiciability, that probably reflects well on you but you will hate this part of the episode. Moving on... Next, your hosts debate the criminal law implications of recent revelations about a meeting between a Russian lawyer and Donald Trump, Jr. (as well as Paul Manafort and Jared Kushner), involving an expected offer by the Russian to give derogatory information about the Clinton campaign. Did it violate campaign finance laws? Is the real legal story here about failing to disclose the conversation? Finally, Vladeck and Chesney dig into a trio of developments relating to military commissions at GTMO. What did the Court of Military Commission Review recently say about the statute of limitations for war crimes, and why is that a hard question? Why is Canada giving millions to Omar Khadr, and what is the controversy surrounding the military commission charge known as "murder in violation of the law of war"? And what is up with a military commission judge calling a halt to proceedings because of...a boat? Oh, and be sure to stay tuned to the end, when your hosts hand out their midseason MLB awards. Just think, starting next week you are going to have to put up with them dissecting Game of Thrones episodes...ugh....
11 Jul 2017
Episode 103: This Podcast Should Be Dis-BARRed
Interested in the views of Once and Future Attorney General Bill Barr on questions like the power of the president to initiate a war, remove officials, and other hot separation of powers topics? We read his oral history so you don't have to, along with some other writings, and we unpack it all for you here in Episode 103. For good measure, we've also got a close look at the latest GTMO habeas litigant to attempt (vainly, we suspect) to get the attention of SCOTUS, along with notes on recent uses of force in Somalia, DRPK sanctions out of Treasury, and the arrest of the Huawei CFO in Canada (for extradition to face sanctions-avoidance charges in the US).But as usual we saved the best for last: What is your favorite foreign film? We've got about eight of them to discuss, and some common themes emerge. Be sure to hit us up on Twitter (@nslpodcast) with your own favorites!
11 Dec 2018
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Episode 141: The House Has Voted to Authorize This Podcast
Granted, it's not Days of Future Past, but our episode 141 is still pretty good! This week, Professors Vladeck and Chesney discuss and debate: The al-Baghdadi raid (and misunderstandings about Congressional notification) A GTMO habeas decision in Abdulrazzaq Who will be the next Secretary of Homeland Security? Debating the authority of an Acting Secretary to alter the order of succession at slots #4 onward... Trumplandia & Impeachment: What to make of the decision to vote on authorizing the inquiry after all? And is anyone left waiting to be persuaded one way or the other?Frivolity, inevitably, covers the World Series (especially the controversy from Game 6), with some GoT for spice along the way!
30 Oct 2019
Episode 148: This Podcast Is “Thug #7”
Tired of watching the impeachment? Turn away from your monitor/tv, put in your earbuds, and go for a nice walk while listening to the latest National Security Law Podcast! This week we have Professors Chesney and Vladeck discussing and debating: The DOJ OIG Report and its account of 17 significant errors associated with the FBI's presentation of information in the series of FISA Title I applications concerning Carter Page. This, of course, leads to a larger discussion of FISA reform. SCOTUS designates March as Subpoena-palooza month! That's right, oral argument in all three Trump-related subpoena cases will occur in consolidated fashion then, with an opinion then expected by the end of June. The National Defense Authorization Act for FY'20 is on its way to the President's desk, and will soon be law.But what you really want to know, of course, is ... how was the Dear Evan Hansen performance the other night? Your cohosts were there, and have a report!
18 Dec 2019
Episode 27: The AUMF: All You Ever Wanted to Know (and Plenty You Didn’t)
Want a thorough backgrounder on the 2001 Authorization for Use of Military Force? This is the episode for you. (This also is the episode for you if what you want, instead, is an hour of legal blather followed by five minutes of speculation about Season 7 of Game of Thrones). The "AUMF" is the key statute on which the government relies for its post-9/11 uses of force relating to terrorism, and it has been the source of controversy and debate for the better part of the past sixteen years. This week's episode focuses exclusively on it. Professors Vladeck and Chesney first explain how it fits into larger legal debates about the separation of powers in our system. Next, they review some of the key historical developments leading to its passage. Then they describe the fight in September 2001 over how broad it ought to be. Then they talk about key legal rulings construing its scope in the years that followed. Then they talk about how the evolving circumstances of counterterrorism--particularly the emergence of entities like AQAP and the Islamic State--have heightened questions regarding the continuing relevance of the AUMF. Then they describe some of the proposed legislative fixes (and why they have not moved forward). Then they...oh, I give up, you have the general idea, it's quicker just to listen!
17 Jul 2017
Episode 147: Sometimes You Get a Donald J. Trump
Welcome back to the National Security Law Podcast! This week we discuss: The two Articles of Impeachment The Inspector General's Report on the origins and conduct of the FBI's investigation into Russian election interference Amazon's lawsuit arguing that President Trump improperly influenced the DOD cloud contract bid selection The NDAA and the legal framework for DoD to conduct (and counter) grey zone information operations The investigative report on persistent overstatement of success in Afghanistan The attempt to Dzokhar Tsarnaev to make a claim for juror/prosecutor bias in the Bostom Marathon bombing case The decision to suspend the process of designating 1 or more Mexican drug cartels as Foreign Terrorist OrganizationsThat, plus some frivolous commentary on football. Alas, no review (yet) of Mandalorian episode 5....
10 Dec 2019
Episode 56: The State of the Uniom Is…ExStravagant!
You might not want to watch the State of the Union tonight, but don't miss this episode of the podcast! This week we cover: The missing Russia sanctions? A statute enacted last summer appears at first blush to require the Trump administration to sanction people doing significant business with Russian military and intelligence entities, starting this week. It didn't happen, and some are alarmed. What did this statute actually require? We'll explore the situation, walking you through the statutory carve-outs. The #releasethememo story evolves: alas, this bizarre topic from last week has not gone away, and with HPSCI now voting to release it seems we are headed still further into the woods. We review the context, explain how this relates to a mounting effort to delegitimize Deputy Attorney General Rosenstein, and why #releasethememo should also entail #releasethedissent. Would it be constitutional to empower courts to oversee decisions to remove the Special Counsel? Revelations that White House Counsel Don McGahn threatened to resign rather than convey President Trump's directive to fire Special Counsel Mueller last summer have drawn renewed attention to two pending bills that would subject such decisions--which according to DOJ regulations must be made based only on a showing of good cause--to judicial review. Would such a law be constitutional? Asking for a friend... About that GTMO closure executive order: Several times over the past year, reports circulated that the White House was prepared to issue a GTMO executive order repealing the 2009 Obama order directing GTMO's closure. It may finally happen this afternoon, in the run up to tonight's SOTU. Tune in for our predictions as to what it might entail. The location of the hidden rebel base: Anyone who watched the Last Jedi should know that sometimes it is possible to track the movement of the military in unexpected ways. Still, who would have guessed your jogging app would be the cause? We note the way Stravagate might inflect perceptions about larger issues involving metadata and third-party data (where is that Carpenter decision, anyway?).That's more than enough, but if you want to hear thinly-reasoned takes on the Grammy's, by all means listen until the end! You go, Gary Clark Jr.!
30 Jan 2018
Episode 57: About that #Mehmo (Special Edition on the Nunes Memo Release)
President Trump has declassified the Nunes Memo and it now is available to the public. Your hosts--Professors Bobby Chesney and Steve Vladeck--give it a deep-dive review here in a special-edition podcast episode. Tune in to hear them discuss: whether there are any factual claims in the memo which (*if* true) are worthy of concern (preview: they single out two); whether any such concerns extend so far as to call into doubt whether FISC should have granted an order to surveil Carter Page (preview: no); whether any such doubt extends to the larger FBI counterintelligence investigation involving Russia (preview: the #mehmo itself underscores that this investigation was well underway already); and whether FBI Director Wray should now resign (preview: your hosts disagree.Be sure to listen through to the very end, by the way; if you are a regular listener, you might be surprised by who gets most fired-up at the conclusion.Meanwhile: please spread the word about this episode, and the show more generally!
2 Feb 2018
Episode 142: We’ve Got Company!
What fun! We recorded this one in front of a large live audience at the Annual Review of the Field conference run by the ABA Standing Committee on Law and National Security, and we did it as a joint podcast with our friends at ABA's National Security Law Today podcast: Elisa Poteat and Yvette Bourcicot! We covered: Islamic State detainees, included (but not limited to) the Beatles The approach of National Cupcake Day (a.k.a. December 15th, a.k.a. the date when several FISA surveillance and document-production authorities will sunset if Congress does not act) A review of three key Supreme Court cases that are pending this term (cross-border shootings and the Constitution, the Suspension Clause, and the President's power to remove independent agency heads)All that and more, but, alas, no frivolity this week! We just didn't have the time. But, don't worry we'll be twice as frivolous next week!
9 Nov 2019
Episode 72: This Podcast Was Recorded Before, On, or After 9/11
No shortage of topics this week. Join us as Professors Chesney and Vladeck debate and discuss: United States v. al-Hawsawi, in which Judge Pohl rules that a military commission prosecution can proceed against an accused 9/11 co-conspirator based on conduct that facilitated (and thus occurred prior to the culmination of) the 9/11 attacks. What is the measure of when "hostilities" begin? Does the Military Commissions Act of 2009 require a different result than would follow under international law? And for good measure: How does one define membership in an entity like al Qaeda? Do recent media reports that "major combat operations" have (again) ended in Iraq have any legal significance? What if anything might follow, for purposes of the military commission case against him, from the claim by KSM's defense team that he may have suffered brain damage while in CIA custody? A January executive order gave Secretary Mattis 90 days to deliver a report to the White House recommending the future course of detainee policy. No word yet on whether the deadline was met, by why let that stop us from speculating about its contents? Meanwhile, the DC Circuit held oral argument last week in Doe v. Mattis. We've got a mini-review, though no one is prepared to predict the outcome. Johnson v. CIA, in which Judge McMahon (SDNY) ruled in favor of the CIA on an interesting FOIA exemption issue involving the consequences when the government makes a selective disclosure of classified information to a journalist. The "Mueller Protection" bill has emerged from the Senate Judiciary Committee. Now it's at the part in the Schoolhouse Rock cartoon when the Bill is waiting to see if the leadership will allow a vote... And then there are the dueling HPSCI reports on Russia and the election. Perhaps the less said here the better, though there are in fact some interesting recommendations. Should the Logan Act be repealed? Do we need a new FISA "foreign power" category to cover foreign hackers who threaten national security but whose sponsorship can't be pinned down reliably? Speaking of reports, we also have some interesting data on FISC decisions thanks to the mandatory disclosure provisions of the USA Freedom Act. Tune in to understand why the data signifies something a bit different than many observers initially assumed.But wait, there's more! If you order now, we will throw in...frivolity! We kept it short this week, because Steve wants to talk Westworld (but Bobby isn't caught up) and Bobby wants to talk Avengers (but Steve hasn't seen it). Sigh. They default to the NBA...
1 May 2018
Episode 87: The D.C. Circuit Ain’t Inquorate
And we're back, with much to discuss in the wacky world of national security law. Join Professors Steve Vladeck and Bobby Chesney as they wrestle with: A *huge* ruling by Judge Pohl in the Military Commission 9/11 prosecution, barring the government from using at trial statements made by the defendants at GTMO to FBI "clean team" interrogators (in what amounts to a CIPA-style sanction in response to government restrictions on defense access to CIA personnel) The government in the Tanvir case (alleging that the plaintiffs were put on the no-fly list by the FBI as punishment for refusing to become informants) has decided to go for en banc review on the RFRA damages question Criminalizing the provision of information about explosives with intent that it be used for a "federal crime of violence"--United States v. Marlonn Hicks as a case study both in First Amendment and vagueness concerns Notes on other recent DOJ national security cases (Iranian spies and an IS fighter who made it to the US) President Trump, Signing Statements, and the NDAA: How does Trump compare to his recent predecessors? John Brennan and Security Clearance Revocations: Are their constitutional limits that can be litigated?And for your weekly frivolity? Tips for all the 1Ls starting at law schools this fall!
21 Aug 2018
Episode 145: The Meh-mometer Is Stuck at Meh
Happy Thanksgiving to all! If you are stuck in an airport or on a long drive this week, we've got you covered for at least one hour, as Professors Chesney and Vladeck discuss and debate: The military commission cases: we provide a full "reset" bringing you up to speed on where things stand with each of the major cases (including a reminder about an important pending motion in the 9/11 case) National Cupcake Day gives way to the Ides of March, as Congress pushes the sunset for several notable FISA provisions from 12/15/19 to 3/15/20 The Secretary Esper/Spencer dispute and the good-order-and-discipline issue raised by the president's intervention in the Gallagher case CENTCOM and SDF get the band back together in Syria, and detainees result...which is a timely reminder that we still depend on SDF to run detention ops in Syria. Subpoena time for Don McGahn? We consider the prospects on appeal, as well as the implications for former National Security Advisor John Bolton.But of course what you really want to know is what your hosts think of episode 3 of the Mandalorian. That, plus Lamar Jackson!
26 Nov 2019
Episode 60: TL;DL – This Is Why We Can’t Have Nice Things
An over-long episode with a short title to reflect a very busy--and somewhat bizarre--eight day stretch in the wide world of national security law. This week, your hosts Professors Chesney and Vladeck weigh in on: The Supreme Court's decision in Rubin v. Islamic Republic of Iran The Supreme Court's denial of cert. in CareFirst The Supreme Court's telling inaction on the government's request for cert.-before-judgment in the DACA litigation The Defense Department's failure to transfer al Darbi from GTMO to Saudi Arabia in accordance with his plea agreement (oh how you'll enjoy the part when Steve reads extended passages from the 2016 NDAA and Bobby narrates the 2014 plea agreement!) Judge Spath's mil com mic drop ("I'm out!"), as well as the military commission prosecutor's office attempt to secure interlocutory review (spoiler alert: probably should be a petition for supervisory mandamus) A short review of the past few weeks of DOJ counterterrorism prosecution results The government's factual case against US/Saudi dual-citizen John Doe, currently in military detention in Iraq, and the question of how to calibrate the burden of proof when it is a citizen Mueller's Russia indictment and what it does (or does not) signify.All that, plus disparaging remarks about Olympic competitors who do not appear to be skilled, at all, in "their" sport.
21 Feb 2018
Episode 84: Happily, We Found Someone Who Knows What They’re Talking About!
We are very excited to have a special guest this week: the one and only Amy Jeffress! Join us as Amy, Steve, and Bobby discuss: The cyber provisions in the just-passed NDAA Doe v. Mattis (of course!) The Mueller investigation Rudy and the conspiracy/collusion comment Legislating to speak out against NATO withdrawal? FARA practice 3-D guns, the Arms Export Control Act, ITAR, and USML (no, that's not a soccer league)Also, an extensive discussion of where Amy should have dinner while in Austin! Gotta go now, that conversation made us all very hungry.
1 Aug 2018
Episode 146: What’s In Your Wallet? A Subpoena!
Welcome back to the National Security Law Podcast! Tune in as Professors Vladeck and Chesney debate and discuss the week's national security law news, including: Trumplandia: The House Intelligence Committee's report shines a spotlight on certain call records, leading some to question how such records lawfully are obtained by investigators. This leads to a discussion of the Fourth Amendment, the third-party doctrine, the Stored Communications Act, and both grand jury and congressional subpoenas. More Trumplandia: The Second Circuit has ruled against an effort to prevent Deutsche Bank and Capital One from complying with a Congressional subpoena for Trump-related records, adding to the slew of cases on this topic. Adham Hassoun and indefinite immigration-law detention for dangerous persons: Back in episode 116 we noted that Hassoun had completed his 15-year sentence (following a conviction for involvement in a murder conspiracy under 18 USC 956(a)), but is being held pending removal...with little prospect for effecting that removal, given his stateless-status. He is now subject to the not-previously-used USA PATRIOT Act Section 412 authority, which involves an initial 7-day window for detention and then calls for semi-annual judicial review. The case presents both procedural due process and substantive due process issues. Designating Mexican drug cartels as "foreign terrorist organizations"--President Trump says this is in the works at last, so we review the legal and policy aspects. National Security Division Roundup: We offer brief notes on a few major recent developments in terrorism-related cases.But it's all about the frivolity, so stay till the end for our idle opinions on what ought to happen with the College Football Playoffs final four, and especially for our take on episode 4 of the Mandalorian.
4 Dec 2019
Episode 121: The Persian Gulf of Tonkin
In this week's episode, Steve Vladeck and Bobby Chesney debate and discuss the latest national security legal news, including: Iran - The prospect of some form of armed conflict with Iran, and the various legal issues this raises. Among other things, we address the 2001 and 2002 AUMFs, the War Powers Resolution, Article I and Article II War Powers, and UN Charter Article 51. The discussion highlights the central role (legally, politically, and diplomatically) that might be played by a precipitating incident either in the Persian Gulf or in Iraq. Military Commissions - While there is no major development to report, we do have an array of smaller decisions on matters relating to recusals, preservation of evidence, and the like. SCOTUS - We coin the phrase "starry-eyed decisis" as we explore this week's portentous stare decisis dispute in the state sovereign immunity case. Media and Propaganda - We note a DOJ victory in securing an order requiring a Florida company to register as a Russian agent based on its broadcasting of Sputnik content. Honestly, it wasn't wise to cheat on sanctions - We discuss DOJ's effort to seize a North Korean vessel (the Wise Honest) that was impounded in Indonesia for sanctions-busting. Leak Prosecution - We compare the prosecution of Daniel Hale for leaking classified information to Jeremy Scahill and the Intercept, contrasting the scenario with that involving Chelsea Manning, Julian Assange, and Wikileaks. Too Conflicted? DOJ is trying to oust former Deputy AG James Cole from representing Huawei. We discuss this unusual intersection of the DC revolving door with the challenge of protecting classified information in litigation.Oh, the frivolity? Yes, there was a tv show on Sunday night. Something about thrones and dragons. Your hosts have opinions.
15 May 2019
Episode 69: Friday Was Quite a Month
In light of the amazing developments last Friday, we decided to move the show up to today. Tune in for discussion of five things that happened just that one day: A deep dive on the international law framework implicated by the US/UK/FR airstrikes on Syrian government facilities associated with chemical weapons (with a special emphasis on the UK's asserted humanitarian intervention justification). An equally-deep dive into the US domestic law framework governing the use of the military (with a special emphasis on the problem of drawing the line between uses of the military that rise to the level of "war" and those that involve lethal force yet still do not count as war). The OIG report on Andy McCabe. The ongoing dispute over attorney-client privilege in relation to the search warrant executed at Michael Cohen's office. The flurry of rumors about the imminent firing of Rod Rosenstein.And if you can hang in for a full hour of that stuff, you'll be treated to the long-awaited review of...Black Panther! (Of course, you'll also be "treated" to more celebration of the Amazin' Mets).
16 Apr 2018
Episode 55: #ReleaseThePodcast
Happy anniversary, y'all! It's been one full year since we launched this podcast, and we are very grateful for all our listeners. Here's hoping there is *less* to discuss in our second year!This week, we've got: The FISA Amendments Reform Act: How exactly does the new warrant requirement work, what it do with "about" collection, and how did it approach the question of "parallel construction"? #ReleaseTheMemo: What the heck is this all about? Must the government have a statutory or treaty basis to transfer John Doe (a Saudi-US dual-citizen held for many months now in US military custody in Iraq, and the petitioner in Doe v. Mattis) to the custody of a third country? Travel Ban 3.0: on its way to SCOTUS in what is shaping up to be a blockbuster term. The REAL ID Act and the expiration of a key deadline for travelers from certain states and territories. The Anti-Deficiency Act and what it means for the pay of military personnel when the government is shutdown. A temporary grant of authority to the executive branch to reprogram intelligence appropriations?As for the usual frivolity: Your hosts were committed to getting the show under one hour this week...and, anyway, they couldn't think of anything fun for their final segment. Unfortunately, this seems to have encouraged them to digress at unpredictable times during the core program to an even greater extent than normal. Bear with them, it'll be worth it!
23 Jan 2018