The National Security Law Podcast

So, you’ll never guess what we’re going to talk about in this week’s episode. [Editor’s note: Guys, you can’t just say that and then put in no further details in these shownotes. Get back to work!  Hello, are you there?  Amateurs…]

And we’re back, with a lot of news to cover!  Tune in for discussion and (respectful) debate with our cohosts, Professors Vladeck and Chesney, as the review: * Is it proper for the DNI to withhold from HPSCI a whisteblower complaint under the Intelligence Community Whistleblower Protection Act (ICWPA…Ick-Wipp-Uh!), where the IG has made a determination that the statutory standard has been met but the DNI disagrees? And what remedies might HPSCI (or SSCI) have if the answer is no? * About that colon/semicolon issue involving Marbury v. Madison… * Not surprising, but still fascinating: DOJ sues Snowden and his publisher because Snowden didn’t seek pre-publication review for his new book or for certain paid speeches. * Back to GTMO: Two D.C. Circuit judges make a point of weighing in, via a dissent from denial of a suggestion for rehearing en banc in Qassim, to express their view that (notwithstanding Boumediene) noncitizens held at GTMO cannot invoke the Fifth Amendment Due Process clause. * Executive privilege: does it make any sense to say that it applies as to a conversation between POTUS and a private citizen? * Paging Steve Vladeck about citing Steve Vladeck; or, the story of recursive citations Best of all, however, is the path that leads from talk of a Princess Bride reboot to a generation-later sequel to Coming to America…

Tune in to the latest episode of the National Security Law Podcast as your co-hosts Professors Chesney and Vladeck discuss and debate: * On the 18th anniversary of the 9/11 attacks: which elements of current counterterrorism law and policy would have come as the biggest surprise back in 2001?  This includes a discussion of the removal of John Bolton as National Security Adviser. * The district court ruling finding that the process for adding U.S. persons to the Terrorist Screening Database violates the Fifth Amendment (Elhady v. Kable). * Judge Lamberth’s ruling on whether GTMO detainees may have access to a private doctor * A note on the passing of Judge Robertson All that, plus way too much “singing” when your co-hosts discover that they both are planning to see Les Mis tonight!

And we are back with more discussion and debate of the latest national security legal news! Tune in for cohosts Steve Vladeck and Bobby Chesney as they take up: * Domestic terrorism and the questions such as (a) whether there ought to be a “designation” process for domestic groups and (b) whether the phrase “civilian population” presents vagueness issues if employed in a criminal law measure. * A trial date for the 9/11 trial at GTMO!  Will it really be underway as of January 11, 2021? What impact might the election have?  And why does that date look familiar? * Presidential disclosure of classified information: it runs the gamut from formal declassification to…tweeted photographs of photographs? * We’ve got one eye on the ongoing talk of a “peace” deal in Afghanistan.  Apparently U.S. forces will remain in-theater for CT ops re al Qaeda and the Islamic State, meaning such a development might not have the legal consequences as to military detention that some might expect.  But don’t ask the National Security Advisor about that, he might not be in the loop on all this! * National Security Division at DOJ has been busy, this time with charges in two cases involving naturalized American citizens who sought to take up arms for the Islamic State–one in Syria, and the other on a pedestrian bridge over the Grand Central Parkway in Queens… And then there’s the sportsball…tune in for NFL predictions that are worth what you are paying to listen!

Well, that’s not quite what the President said.  It was something about American companies and trade with China, not you and your podcast app.  And IEEPA can’t be used to make anyone listen to this podcast, we suppose.  But voluntary cooperation is welcome, and those who tune in this week won’t be disappointed when they find co-hosts Vladeck and Chesney discussing and debating: * The International Emergency Economic Powers Act (IEEPA) as a basis for a potential POTUS order barring U.S. companies from transacting with Chinese counterparts * The latest developments (this time at the SCOTUS level) in the Ninth Circuit litigation over Trump administration rules attempting to restrict the pathways for seeking asylum in the US * An important but overlooked military commissions development involving the viability of inchoate conspiracy charges (and the meaning of a badly splintered D.C. Circuit opinion on that topic). As for frivolity?  Not that frivolous today, actually, as your hosts take up the task of giving advice to 1Ls who are starting law school this month.  Or, you could just watch clips from the Paper Chase…

And we are back with more debate and discussion concerning the latest national security and law news!  In this week’s episode, co-hosts Bobby Chesney and Steve Vladeck explore: * The legal complexities that followed from the resignation of Sue Gordon as Principal Deputy Director of National Intelligence and the follow-on appointment of Adm. Joe Maguire (up to that point the Director of the National Counterterrorism Center) to be the Acting DNI (a temporary appointment that by statute precludes him from continuing to serve as NCTC Director; no word on whether Amazon intends to use this as a plot point for its Liberty Crossing show). * Two new bills in Congress, each of which would create a new federal crime of “domestic terrorism” (see here for Senator McSally’s bill, and here for Rep. Schiff’s bill) * A Ninth Circuit ruling truncating the geographic scope of an injunction preventing the Trump Administration from implementing its plan to require asylum applicants to make their original application before entering the United States (and associated issues with “national” injunctions) * And then there is our Greenland segment…seriously, a Greenland segment!

This week’s episode features an extended discussion of domestic terrorism as a legal category and as a policy category, in light of the attack in El Paso.  Among other aspects, we discuss: * Substantive criminal charging options at the state and federal levels * Arguments for an against federal expansion into this area * Federal terrorism crimes that can be applied in domestic terrorism cases * The pros and cons of expanding the “designated terrorist organization” concept to domestic groups * Preventive charging in the domestic terrorism context * What it would mean to (try to) import foreign terrorism intelligence-collection authorities into the domestic terror setting We also discuss an important cert. petition pending before SCOTUS, raising the question whether noncitizens in the expedited removal context can invoke the Suspension Clause (DHS v. Thuraissigiam) After an otherwise somber discussion, stay tuned at the end for some light-hearted frivolity celebrating the improbable recent surge of the New York Mets and the fully-probable and ongoing surge of the Houston Astros.

And we’re back with a new episode, with co-hosts Steve Vladeck and Bobby Chesney discussing and debating the latest national security law news (and, let’s face it, engaging in *lots* of digressions).  This week we’ve got: * Succession-Fest: We go deep into the weeds on a number of succession-in-office topics involving people named to be “acting” this-or-that.  Of course we focus in particular on the prospect of an Acting Director of National Intelligence, but we also look ahead to developments impacting the Department of Homeland Security.  And, just for kicks, we consider the implications of having a large number of acting officials as department heads in light of, oh, how about the 25th Amendment? * Military Commissions: We update a few topics from last week, while once more looking ahead to the eventual 9/11 trial. * SCOTUS in Summer: SCOTUS is out of session, yes, but still takes certain actions. We’ve got a Border Wall update, along with some really-in-the-weeds analysis of the Court’s original (and perhaps exclusive?) jurisdiction for certain types of cases involving states. * NSD Roundup: Usually the roundup of news involving DOJ’s National Security Division involves one prosecution victory after another, but not this week: We pick up a story from our 109th episode, reporting on the district court’s recent decision to vacate the conviction of Hamid Hayat (the Lodi, California man convicted more than a decade ago for an alleged terrorism plot). As for frivolity, this week we keep it rather brief and off-the-cuff, focusing on some Major League Baseball trade developments.

This week on the National Security Law Podcast, with co-hosts Bobby Chesney and Steve Vladeck: * War Powers: Congressional testimony from the State Department’s Acting Legal Advisor confirms that the administration has placed AQIM on the list of “associated forces” within the organizational scope of the 2001 AUMF, notes that the administration has not (yet) determined that Iran is within the scope of either the 2001 or 2002 AUMFs, and much more. * Prosecution vs Military Detention: A U.S. citizen who fought for the Islamic State was turned over by SDF to the United States, and is now back in the U.S. facing material support charges in federal court.  We compare and contrast this outcome with the use of military detention in the case of John Doe, of Doe v. Mattis fame. * Prosecuting KSM and the other 9/11 Defendants: Meanwhile, on the military commission front, a major clash is looming in the prosecution of KSM and the other 9/11 defendants.  They’ve moved to dismiss the charges on grounds of “outrageous government conduct,” based on the manner in which they had been interrogated.  We explain what that sort of motion involves, compare it to past examples like Jose Padilla, explore its prospects, and project what sort of sanction realistically might be imposed should the defendants actually prevail on the merits. * SCOTUS, Executive Privilege, and United States v. Nixon – It’s the anniversary of the Court’s Nixon ruling, which recognized Executive Privilege but also confirmed that it can be overcome.  Timely! * Going Dark Part Deux – We note AG Barr’s speech bemoaning the Going Dark trend, and speculate about the prospects for actual legislation in this area (spoiler: prospects are slim). As always, we end with frivolity (or perhaps it is more accurate to say, there’s actual planned frivolity at the end, in contrast to all the unplanned stuff earlier in the show).  This week?  We breakdown the just-released, expanded trailer for WestWorld Season III.  Critical question: If WestWorld was real and included a WesterosWorld environment, which House would you join?

For our latest episode, we offer you NSL Podcast Mad Libs in lieu of show notes! We’re back after a __ [number]-week break, and there have been some ____ [noun] security law developments in the meantime!  Professors ____ [full name of celebrity] and [full name of sports star] are here to ____ [verb] all of it.  ___ [adjective] ____ [plural noun] on this episode include: * Justice Stevens, R.I.P.: We reflect on key national security ____ [plural noun] he wrote or impacted. * Border ____ [noun] Litigation Update * SCOTUS trends: The ____ [noun] General keeps seeking early SCOTUS involvement in ____ [plural noun].  Steve’s forthcoming ____ [name of school] Law Review article ____ [verb ending in -s] explains the significance of all this in terms of the ____ [noun] Docket, as you can read here. * PCLOB gears up: The ____ [noun] & Civil [plural noun] Oversight Board is back in action, identifying upwards of __ [number] current projects, including a review involving XKEYSCORE and another concerning _____ [adjective] _____ [plural noun]. * Luxemburgers: ____ [name of celebrity] explains what took him to Luxembourg recently and what this had to do with Privacy ____ [noun]. * The NDAA inches closer to a ___ [noun] fight: The House _____ [past-tense verb] its version of the NDAA, and it is packed with ____ [plural noun].  The White House may well ____ [verb] the end result, but first we have to see what happens with the _____ [name of an organization] version of the bill and the process of reconciling the two. * UCI & Bergdahl: The Army Court of ___ [plural noun] has ruled on Bowe Bergdahl’s Unlawful Command Influence appeal, finding that President Trump’s Twitter ___ [noun] constituted a ____ [adjective] ____ [noun], but the resulting _____ [noun] was harmless. * Casebooks: Just in time for ___ [a year far into the future], Steve and his co-authors ______ [name of rock star], ____ [name of movie star], and ______ [name of politician] have completed the supplement for their casebook on ______ [noun] law. As for frivolity, your co-hosts at long-last present their review of a the ___ [adjective] Star Trek episode “The ______ [name of animal].”

Welcome back to the National Security Law Podcast, where co-hosts Bobby Chesney and Steve Vladeck cross-swords with courtesy and nerdistry while reviewing the latest national security legal news (along with a healthy does of frivolity at the end…and sometimes the middle…and the beginning…)!  This will be the last episode until July 17th or 18th, and it covers: * Doe v. Mattis is back! Well, not in a major way.  But we do at least have a reissued D.C. Circuit opinion that confirms what we all knew: the government had been negotiating with Iraq and Saudi Arabia, etc.  We discuss whether the long process of allowing this to become public shows a system working well or problematically. * Back to the Border (Wall) – Judge Gilliam has now issued a permanent injunction in the Sierra Club lawsuit challenging the Trump Administration’s attempts to generate new border wall construction funds via DOD’s support-to-counternarcotics account.  It’s more or less the same legal analysis as in the preliminary injunction opinion discussed in detail in Ep. 123, but we bring things up to date here. * SCOTUS calls BS – Chief Justice threads the needle in the Census Citizenship Question case, Department of Commerce v. New York, holding on one hand that a citizenship question can be asked on the Census, but also that the Department of Commerce in this instance was lying when claiming to want to do so in 2020 solely in order to help DOJ enforce the Voting Rights Act.  That pretext ruling sets up an interesting comparison to the earlier Travel Ban litigation, and sets the table for more challenges in the near future with DACA, Border Wall litigation, and much more. * Crypto Wars Redux? News of a National Security Council Deputies Meeting discussing the “going dark” challenge has people wondering if a push for legislation is on the horizon.  We suspect not. * Phone Metadata and Compliance:  Recent news detailing how a telecom provider gave NSA too much information in response to an otherwise-proper USA Freedom Act request has added fuel to the fire that is burning right underneath the thin thread on which Section 215 renewal is hanging.  But was this proof of the need to let that thread snap, or just an example of a compliance framework effectively spotting and fixing errors? And then there was sportsball.  Turns out the Knicks front office isn’t good at what they do, and Golden State’s is really, really good.  So say we all…

We are back with the latest in national security legal developments, with Professors Chesney and Vladeck agreeing where they can and arguing respectfully (and, let’s face it, nerdishly) where they can’t.  On tap this week: * Military Detention and the Constitution: We dive deep into the questions raised by the D.C. Circuits decision in Qassim, which raises the possibility that the Fifth Amendment Due Process Clause might apply in the context of habeas challenges brought by military detainees held at GTMO notwithstanding the Court’s earlier Kiyemba decision. * Cyber Operations Against Iran: After our earlier discussions of a Persian Gulf of Tonkin scenario nearly became reality, we ended up seeing, instead, a possible series of cyber operations against various Iranian targets.  We talk about whether this raises the same or similar separation of powers concerns, and more generally place this development in context with our earlier war powers debates. * Who’s Who in the Pentagon Succession Chain: As we approach the half-year mark with only an acting SecDef, and with so many open spots and unconfirmed-but-acting officials, the succession chain is growing ever more complicated.  We review the sequence of events likely to unfold with Acting Secretary Esper and others. * NSD Roundup: Hey, counterterrorism prosecutions are still a thing, even if the nation’s attention has wandered elsewhere.  We take brief note of three recent cases. * SCOTUS Roundup: Is the administrative state itself doomed, or are we just in for a bit of non-delegation doctrine revival?  And if the latter, are we also eventually going to see a new Curtiss-Wright-type case? Next, let’s head to…Westworld!  For our frivolity, we at last are going to review Westworld Season 2.  And you thought Facebook collected a lot of data…

We are back with the latest national security law news, with your co-hosts Steve Vladeck and Bobby Chesney explaining, debating, and–let’s face it–geeking out.  This week we’ve got: * War Powers: The latest events in the simmering situation with Iran, and what they portend in terms of potential claims of Article II authority to use at least some amount of military force without further Congressional approval. * Military Commissions: The mil coms continue to generate pre-trial disputes, this time with a new round of disagreements about just who will serve as the capital-qualified defense counsel in Nashiri. * SCOTUS: The current term of the Supreme Court is nearing its end, and this week we saw some interesting developments including affirmation of the longstanding “separate sovereigns” rule (pursuant to which state and federal authorities may separately prosecute for the same underlying acts without violating the Double Jeopardy rule, something that has implications in light of the President’s Pardon Power extending only to federal offenses) as well as some thought-provoking commentary by Justice Thomas concerning the metes and bounds of stare decisis. * Hackback: We review the key moving parts in the re-introduced “AC/DC bill”–that is, the Active Cyber Defense Certainty Act–including the separate provisions on beacons and on “active cyber defense measures.” * Hacking the Russian Grid: We also take note of the revelation that CYBERCOM may have hacked Russia’s grid in some respect, and we talk about the international law implications of that story. And, as always, there is frivolity.  Let’s some it up with an acronym: STTNG, and a call for listener suggestions for particular episodes for review!

And we are back, after a one-week hiatus, with loads of national security law debate and discussion, not to mention some Grade B frivolity! On tap for Professors Vladeck and Chesney: * Detention of Enemy Combatants: Assessing the significance of the SCOTUS cert. denial in al-Alwi, and Justice Breyer’s statement about the possible impact of evolving circumstances over time * NDAA FY’20 Draft Provisions: The Senate and House NDAA bills are packed with interesting items, including the possibility of an exception to the GTMO transfer ban for purposes of medical treatment inside the United States, reinforcement of statutory preconditions to separating the NSA/CYBERCOM “dual hat,” and more. * Detention and U.S. Persons: You don’t see Ted Cruz and Diane Feinstein teamed up every day, so we take a close look at the latest version of the perennial Due Process Guarantee Act. * The Vetoed Yemen Hostilities Resolution and Its Impact from a Youngstown perspective: Some scholars say that the bill should be construed to prohibit certain forms of support to the Saudi coalition, even though the bill died thanks to a veto.  We test that claim. * Circumventing Constitutional Checks on the Appointments Power: Ye ol’ Federal Vacancies Reform Act has some loose provisions, and we assess a recent move to take advantage of this. All this and much more…including a salute to the U.S. team at the Women’s World Cup, and a discussion of the Goal Celebration Controversy…

In a final episode before taking a one-week travel break, co-hosts Bobby Chesney and Steve Vladeck discuss and debate an array of recent national security law developments including: * Assange & the Espionage Act: DOJ has unsealed a superseding indictment against Julian Assange, including a raft of Espionage Act charges with serious (and long-anticipated) implications for journalists.  The indictment does not mention the connection between UT’s Volleyball Gymnasium and a key architect of the Espionage Act back during WWI, so we also address that… * Border Wall Funding: In Sierra Club v. Trump, a federal district judge has issued a preliminary injunction in relation to the Trump administration’s efforts to transfer funds to DOD’s “Section 284” account, while also addressing the distinct “Section 2808” military construction funding mechanism. * SCOTUS Grants Cert. in the Cross-Border Shooting Case: Steve isn’t busy enough, so SCOTUS has decided to hear Hernandez v. Mesa (on whether a Bivens damages action should exist where a federal agent is alleged to have violated the Fourth & Fifth Amendments and there is no other remedy available). * NSD Roundup: Short notes on a pair of terrorism-related case developments. * How Was that Not Military Activity? On the ITLOS decision concluding that Russia was not engaged in “military activities” when it fired on and seized Ukrainian vessels. But, enough about all that serious stuff. We’ve also got opinions about the NBA…