The National Security Law Podcast

Just in time for your weekend entertainment, NSL Podcast is back with a new episode. This time the show was recorded live before a (Zoom-based) audience of Texas Law alumni, which made for a nice change of pace!  Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss and debate: * War Powers reform:  whither the 1991, 2001, and 2002 AUFMs?  Might there even be agreement on how to handle “associated forces” in a 2001 AUMF reform package? * The Tsarnaev (Boston Marathon bombing) case: SCOTUS has granted cert on the jury issue, but will the Biden Administration still pursue the death penalty in general? * Court martial jurisdiction * Judicial deference on security matters — including IEEPA and CCMC (Communist Chinese Military Companies) designations * The Fourth Circuit reinstating the jury’s decision convicting a man of acting as an (unregistered) foreign agent for Turkey * An extradition of a North Korean citizen…how’d that happen?  

An extra-fun episode because we have an extra person with us tonight: Texas Law 3L Jake Bishop, our special guest host!  Jake, thanks for joining in the fun! Tune in, as Jake and co-hosts Steve Vladeck and Bobby Chesney discuss: * The return of the PPG?  The Biden administration reinstates, for now, certain rules regarding the use of lethal force outside areas of active hostilities. Will it last? Does it matter? * AUMF reform: the 2002 (and 1991!) AUMF version * AUMF reform: the 2001 AUMF version * The prospects for a “covert” response against Russian networks in relation to SolarWinds, and whether that makes any sense * Steve’s (apparently brutal) oral argument before the CAAF today Oh, and apparently there is a sequel to Coming to America?  Maybe they should have tried a bit harder on that one….

Well, it’s been a while, thanks to the ice/snow/power/water fiasco we recently underwent in Texas.  But, though tired and not very prepared, we are back tonight!  Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss and debate: * The domestic and international law grounds cited by the Biden administration for its recent airstrike in Syria * An update on the situation regarding high-value Islamic State detainees held by the SDF in Syria (and whether they ever were in US custody) * A note on the role of “true threat” charges in insurrection-related cases: how specific (if at all) must such charges be vis-a-vis the threatened object of the threat? * More developments at GTMO * The Biden administration’s response to Kashoggi in comparison to its response to Navalny And some rather-rambling frivolity, mostly in the anticipation for Coming 2 America dropping in a few days.

We had great fun recording this one, thanks to special guest Greg Gisvold (consultant and senior fellow with the Rule of Law Collaborative at the University of South Carolina) is the winner of a recent charity raffle in which the prize (or penalty???) was … cohosting the show with us!  That proved to be great news for us, for Greg’s work around the globe working in support of rule-of-law-building programs couldn’t be more interesting and important.  Listen in to learn more, as we cover: * The latest impeachment developments * An update on Steve’s litigation (at the Court of Appeals for the Armed Forces) on court martial jurisdiction and former servicemembers * The delay of the Hambali (et al.) arraignment at GTMO * Whither those high-value Islamic State detainees the US acquired from our Kurdish allies back in October 2019? * And best of all, our interview with Greg Gisvold regarding rule of law capacity building around the globe Stick around for a comically-overlong segment on the 1986 Mets, too.  Seriously…we just kept talking about it, and having no editor, well, it’s a long show as a result!

This week on NSL Podcast, co-hosts Steve Vladeck and Bobby Chesney discuss * The proposition that the First Amendment (particularly the Brandenburg rule) might matter for the Senate’s trial of the impeachment of Donald Trump * The D.C. Circuit’s ruling rejecting subject-matter jurisdiction over Philip Sundel’s attempt to gain access to a closed proceeding in the al Qosi litigation at the GTMO military commissions, with a special focus on the extensive dicta concerning the standing of agency employees to challenge the actions of their own agencies * The controversy that erupted in light of news that KSM might be vaccinated * The delay in the arraignment of Hambali and his co-defendants at GTMO * The confirmation of Secretary Mayorkas at DHS, and the delay of a confirmation hearing for Garland to be AG * The Biden administration’s termination of certain Trump-era cases DOJ had been pressing to SCOTUS * Canada’s decision to formally list the Proud Boys as a terrorist organization, and why the same thing cannot (under current law) happen in the United States This, plus some lollygagging Bull Durham style, and dueling predictions about the Super Bowl!

And then it was over. Wow.  Here’s hoping we can focus on traditional national security law topics from now on!   Today is a pretty good start. We’ve got: * A new administration needs a welcoming gift…so, here’s a delightful basket of…military commission charges involving the Bali/Jakarta bombings??? * A parting gift from Army Secretary McCarthy: AR 190-8 no longer applicable at GTMO * The DC Circuit weighs in on Hoda Muthana’s citizenship status–ruling against her and thus also against her father’s attempt to compel the government to support her return to the US from Syria (where she had been married, twice, to Islamic State fighters) * The DC Circuit also weighs in on the Zaidan case, finding no standing to the sue the U.S. government for alleged targeting for drone strikes in Syria where the allegations of such targeting were deemed too speculative * Larabee: apparently Steve is going to have do so more briefing soon regarding court martial jurisdiction over former servicemembers * The WeChat suit in the 9th Circuit: Bobby review’s last week’s oral argument concerning the government’s appeal of a preliminary injunction that suspended the Trump administration’s IEEPA action against WeChat, citing First Amendment grounds.  The First Amendment argument here is quite weak; time to send this one back for consideration instead of the IEEPA issue. * Confirmation of Avril Haines as DNI, and passage of a statutory override that will allow the Senate to proceed to confirm General (ret.) Lloyd Austin as SecDef. * Biden immediately rescinded the “national emergency proclamation” as to the Southern Border, ending the redirection of defense dollars towards “wall” projects. That, plus loads of sportsball frivolity (yielding precious little insight!).

We’re back with further discussion of the insurrection: * Is it constitutional for the Senate to carry on with trial of an Article of Impeachment if the impeached official is no longer in office? Yes, yes it is. Disqualification from future office is a separate and independent purpose of the trial phase, independent of removal from office; where it otherwise, any half-wit could avoid such punishment simply by resigning once it became clear they were likely to lose in the Senate. * We review the strong statement of FBI and DOJ engagement in pursuing the ringleaders and others culpable for the January 6th attack. * What really happened to the Would-Be-Acting-Twice-Nominated DHS Secretary Chad Wolf? It’s a tale of statutory inevitability.  At any rate, welcome to the front office Pete Gaynor! * Does the disqualification-from-office provision of Section 3 of the 14th Amendment apply to Trump’s outrageous conduct?  Well, that 6:01pm tweet of his wants to make a case for providing aid-and-comfort to armed enemies of the Constitution and government of the United States… * Mike Pompeo announces an Iran-al Qaeda team-up…what legal implications? * Nightmare scenarios for the endgame period: watch out for domestic terrorism at iconic government-related locations away from the Inauguration. * How great is it that the Mets picked up Francisco Lindor?

Today was a national tragedy of the first order. Tonight we discuss: * the many crimes that definitely were committed, and certain other crimes — particularly seditious conspiracy — that may have been committed (and how that relates to the First Amendment Brandenburg test) * the bizarre and indefensible lack of a strong police presence and a proper National Guard response (including an unpacking of the legal authorities governing control over DC’s guard) * some familiar — and some not-so-familiar — interpretive questions associated with the 25th Amendment (including not just the role of “Acting” secretaries, but also the question of what happens if the president’s “rebuttal” letter is followed instantly by the firing of all the secretaries who signed the original letter) * impeachment issue, including the prospect of proceedings lasting beyond January 20th…and the possibility of an outcome permanently barring Donald J. Trump from office

How about a surprise mini-episode on New Year’s Eve???  Sure, why not!  Tune in for…well, not much.  We just wanted to say hi, happy new year, thanks for being listeners, and 2020-Don’t-Let-The-Door-Hit-You-On-The-Way-Out!

Hello from Austin, home of SolarWinds and CyberTrucks! [ed. note:  uh, no.  Let’s go with home of bbq and tacos instead]  We’re back with another round of discussion and debate with Professors Steve Vladeck and Bobby Chesney, as they cover: * Erica Newland’s NY Times op-ed arguing that DOJ attorneys should have resigned early on during the Trump administration * What exactly counts as a seditious conspiracy for purposes of (i) federal criminal law and (ii) the Uniform Code of Military Justice?  Asking for a friend… * The sudden rise, and apparent collapse, of a rushed attempt by DoD leadership to direct separation of NSA and Cyber Command * Prospects for a veto override if Trump vetoes the NDAA tomorrow * Section 1705 of the pending NDAA: an authority for DHS CISA that in some ways speaks directly to the flaws exposed by the SolarWinds debacle * Al Shabaab’s 9/11-style plot, and the compelling ordinariness of the Justice Department’s decision to prosecute it in Manhattan * Pan Am 103 back in the news: AG Barr announces charges against the bombmaker (who may also have made the bomb that struck La Belle Discotheque in Berlin) And, of course, views on the Mandalorian season finale!

Hey, we’re back on our weekly schedule!  How ’bout that…now we’ll probably skip the next three, but hey, until then, we’ve got a quite a show, not to mention the launch of our holiday charity drive! What’s that all about?  Well, it’s simple: give $5 or more to Casa Marianella, forward the emailed receipt that you get from them to ThisIsTheWay@strausscenter.org (.org, not .com!), and you will be entered in a drawing.  What drawing?  Well, after January 15, we’ll pick one of the entries at random, and that person will be invited to join us (date to be determined jointly) to CO-HOST an episode with us!  Do it!  Do it!  C’mon, do it! What’s that?  Oh, right.  This week’s show actually talks about: * Barr out, Rosen in * The demise of the Ken Paxton (well, “Texas”) election suit * Electors doing their jobs, electors doing…something else * The “Safe Harbor” rule and justiciability of electoral slate challenges * The SolarWinds cybersecurity mess * TikTok v. Trump: The DC Circuit seems poised to accept TikTok’s IEEPA interpretation argument * The roadmap to closing GTMO under the Biden administration (well, we are speculating, but still…) * Did you know the Periodic Review Board authorized a GTMO transfer the other day?  That’s 6 approved for transfer, out of 40 remaining overall. * Another trial judge for the 9/11 case…or one of the old ones is back.? * DOD ending support for CIA Title 50 operations? * The NDAA: veto or not? * If not, then here’s what Section 1702 does for Congressional oversight of “sensitive military cyber operations” * The Supreme Court’s Briggs decision: bad news for a certain podcast co-host * Is it just me, or is this least really long? * Frivolity: The Mandalorian of course.  Or is it the Manladorian? (Google it)

It’s National Safe Harbor day (for all you Electoral College enthusiasts), and we’re here to celebrate with a new show.  Join for spirited but respectful debate between Professors Chesney and Vladeck as they discuss: * The legal basis for a possible presidential action to compel Pfizer to bump the United States ahead of other countries when it comes to accessing vaccine doses beyond the 100m covered in the current contract * Texas Attorney General Ken Paxton’s attempt to get the Supreme Court to adjudicate a claim by Texas that the election results in Georgia, Wisconsin, Michigan, and Pennsylvania all should be thrown out * The Supreme Court’s ruling (granting injunctive relief) in Roman Catholic Diocese of Brooklyn v. Cuomo, concerning the application of the First Amendment Free Exercise Clause to New York’s emergency rules on maximum-occupancy for purposes of pandemic control * Whither the NDAA? We take note of the veto threat, and offer thoughts on selected issues in the bill including the GMTO and military commission-related provisions (or, in the latter case, the absence of one such provision), as well as the proposed National Cybersecurity Director Plus, inevitably, a review of the latest episode of The Mandalorian, and appreciation for the New York Colt McCoys (Giants)!

And…we’re back! Tune in as Professors Steve Vladeck and Bobby Chesney discuss the latest in national security legal developments, including: * Prospects for the Biden Administration to chart a new course with respect to (a) the use of military detention at GTMO, (b) the transfer of GTMO detainees approved for such transfer already, or (c) the use of military commissions as the vehicle for criminal prosecutions * Prospects for the nomination to be Secretary of Defense, and the role of the federal statute requiring servicemembers to be out for at least seven years before becoming eligible for that (civilian) position * Comments on the other national security nominees to this point * More on the plethora of election-related lawsuits and the larger problem of bogus claims about massive fraud * Steve’s win in the Larrabee lawsuit, in which Judge Leon has now held that it is unconstitutional to subject separated servicemembers to face recall for court-martial prosecution for post-separation crimes * The killing in Iran of a senior al Qaeda figure, and the related question of how the passage of time impacts (or does not impact) an individual’s connection to the AUMF and the U.S. government’s position on the existence of an armed conflict with al Qaeda And, at long last, frivolity focused on The Mandalorian Season 2!  (Plus, the improbable playoff prospects of the New York Giants, for whom anything is possible with Colt McCoy at the helm!)

In this week’s episode, co-hosts Steve Vladeck and Bobby Chesney discuss and debate: * The array of firings and appointments of senior Defense Department officials * The law governing the General Services Administration and support for presidential transitions * Whether it is appropriate to place pressure on Jones Day (and their other clients) based on the involvement of Jones Day lawyers in election-challenge lawsuits * United States v. Maiorana: charge against a Staten Island man, under 18 USC 875(c) (threats of violence), based on vile online postings about killing protestors and government officials (raising First Amendment issues relating to the difference between the “True Threat” and “Incitement” categories) * TikTok update: tomorrow (the 12th) is the CFIUS divestment deadline….what will happen next? Since *someone* hasn’t watched the first Mandalorian season 2 episodes yet, we are left to chat about the new owner of the Mets and the chances of a Dodgers/Yankees-style spending spree….

We are back, but alas we’re here to talk about the election!  If you were hoping for a national security-focused escape from the election, well, we’ll make it up to you soon)!