Shows
The National Security Law PodcastEpisode 246: Around the Drain in 80 DaysBetcha thought we were done…but we’re back! Tune in as Steve Vladeck and Bobby Chesney discuss and debate the latest (ok, some of this stuff is months old) national security law and related developments, including:
The renewal of Section 702 (aka our first contribution to the rapidly-upcoming debate over the next renewal)
The conviction of the former president in New York Court (and the prospects for SCOTUS to get involved)
Speaking of SCOTUS: we’re waiting on a *LOT* of big decisions over the next two weeks, including the presidential immunity claim, social media content moderation jawboning, and mor...
2024-06-201h 21
The National Security Law PodcastEpisode 246: Around the Drain in 80 DaysBetcha thought we were done…but we’re back! Tune in as Steve Vladeck and Bobby Chesney discuss and debate the latest (ok, some of this stuff is months old) national security law and related developments, including:
The renewal of Section 702 (aka our first contribution to the rapidly-upcoming debate over the next renewal)
The conviction of the former president in New York Court (and the prospects for SCOTUS to get involved)
Speaking of SCOTUS: we’re waiting on a *LOT* of big decisions over the next two weeks, including the presidential immunity claim, social media content moderation jawboning, and mor...
2024-06-201h 21The National Security Law PodcastEpisode 240: Something Got ReleasedIf you are interested in a detailed and careful explanation of the charges at issue in United States v. Trump (the recent indictment of the former president in relation to his effort to overturn the results of the election), the way that the alleged facts related to those offenses, and the relatives strengths and weaknesses of the most likely defenses…well, this is the show for you. Though co-hosts Steve Vladeck and Bobby Chesney originally planned to discuss an array of topics in addition to reviewing the latest indictment of the former president, they ended up spending the entire hour...
2023-08-081h 04The National Security Law PodcastEpisode 240: Something Got ReleasedIf you are interested in a detailed and careful explanation of the charges at issue in United States v. Trump (the recent indictment of the former president in relation to his effort to overturn the results of the election), the way that the alleged facts related to those offenses, and the relatives strengths and weaknesses of the most likely defenses…well, this is the show for you. Though co-hosts Steve Vladeck and Bobby Chesney originally planned to discuss an array of topics in addition to reviewing the latest indictment of the former president, they ended up spending the entire hour...
2023-08-081h 04The National Security Law PodcastEpisode 239: We Have Many Tapestries!Well, it’s been about a month, so it’s good we are finally back with a fresh episode! Tune in as hosts Steve Vladeck and Bobby Chesney kick the tires on:
The New York Times story (per Charlie Savage) on the Biden Administration’s October ’22 revised policy guidance on kill/capture operations outside areas of active hostilities
Touching base with the will-it-ever-end (no) Nashiri litigation
The National Guard, federal court-martial jurisdiction for members not in federal service, and the Fifth Circuit
Missouri v. Biden: a stunning injunction (and 155-page underlying memo) limiting the ability of a slew of federal g...
2023-07-111h 22The National Security Law PodcastEpisode 239: We Have Many Tapestries!Well, it’s been about a month, so it’s good we are finally back with a fresh episode! Tune in as hosts Steve Vladeck and Bobby Chesney kick the tires on:
The New York Times story (per Charlie Savage) on the Biden Administration’s October ’22 revised policy guidance on kill/capture operations outside areas of active hostilities
Touching base with the will-it-ever-end (no) Nashiri litigation
The National Guard, federal court-martial jurisdiction for members not in federal service, and the Fifth Circuit
Missouri v. Biden: a stunning injunction (and 155-page underlying memo) limiting the ability of a slew of federal g...
2023-07-111h 22The National Security Law PodcastEpisode 238: The World WondersToday’s episode focuses on the indictment in United States v. Donald Trump and Waltine Nauta, S.D. Fla. (23-80101-CR). Co-hosts Steve Vladeck and Bobby Chesney walk you through the factual allegations, the crimes charged, the areas where tricky evidence questions might arise, the process for selecting the presiding judge, and the prospects for an array of things including: recusal; a Presidential Records Act defense; a I-declassified-this-stuff defense; a pre-verdict Rule 29 motion for judgment of acquittal; and a trial occurring around the time of the election. Buckle up and tune in!
2023-06-1358 minThe National Security Law PodcastEpisode 238: The World WondersToday’s episode focuses on the indictment in United States v. Donald Trump and Waltine Nauta, S.D. Fla. (23-80101-CR). Co-hosts Steve Vladeck and Bobby Chesney walk you through the factual allegations, the crimes charged, the areas where tricky evidence questions might arise, the process for selecting the presiding judge, and the prospects for an array of things including: recusal; a Presidential Records Act defense; a I-declassified-this-stuff defense; a pre-verdict Rule 29 motion for judgment of acquittal; and a trial occurring around the time of the election. Buckle up and tune in!
2023-06-1358 minThe National Security Law PodcastEpisode 237: Are You Not Detained???And we're back, with co-hosts Steve Vladeck and Bobby Chesney breaking down the latest national security law news along with much else. This week the spotlight is on the D.C. Circuit's en banc decision in al Hela, which grapples with the applicability of the Fifth Amendment Due Process Clause (in both its procedural and substantive aspects) to GTMO detainees. We've also got an update on the Badilla contractor immunity case (in which Steve plays a role as counsel to the plaintiffs), some Shadow Docket developments, and notes on the prosecutorial aspects of Cold War II.
2023-04-251h 19The National Security Law PodcastEpisode 237: Are You Not Detained???And we’re back, with co-hosts Steve Vladeck and Bobby Chesney breaking down the latest national security law news along with much else. This week the spotlight is on the D.C. Circuit’s en banc decision in al Hela, which grapples with the applicability of the Fifth Amendment Due Process Clause (in both its procedural and substantive aspects) to GTMO detainees. We’ve also got an update on the Badilla contractor immunity case (in which Steve plays a role as counsel to the plaintiffs), some Shadow Docket developments, and notes on the prosecutorial aspects of Cold War II.
2023-04-251h 19The National Security Law PodcastEpisode 231: If You Go to Washington Don’t Crime ThereWhat's this, a one-week turnaround between shows? Will wonders never cease? In a throwback to the days of this being a weekly show, your co-hosts Bobby Chesney and Steve Vladeck are back on a quick turnaround in order to debate and discuss:
A new seditious conspiracy conviction arising out of Jan. 6
A New York State "material support" prosecution (State v. el Faisal)
Various SCOTUS updates
Any classified documents that we might have found when cleaning up the ol' office
The shocking arrest of the former FBI Special Agent in Charge of the Counterintelligence Division at FBI's NY Field Office on I...
2023-01-2455 minThe National Security Law PodcastEpisode 231: If You Go to Washington Don’t Crime ThereWhat’s this, a one-week turnaround between shows? Will wonders never cease? In a throwback to the days of this being a weekly show, your co-hosts Bobby Chesney and Steve Vladeck are back on a quick turnaround in order to debate and discuss:
A new seditious conspiracy conviction arising out of Jan. 6
A New York State “material support” prosecution (State v. el Faisal)
Various SCOTUS updates
Any classified documents that we might have found when cleaning up the ol’ office
The shocking arrest of the former FBI Special Agent in Charge of the Counterintelligence Division at FBI’s NY Field Of...
2023-01-2455 minThe National Security Law PodcastEpisode 228: Not *That* George Clinton!Holiday edition! Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss the rapid demise of the attempt by Donald Trump's lawyers to use Executive Privilege in relation to the classified documents found at Mar a Lago, the arrival in the US of a former Libyan intelligence officer charged with a key role in the horrific bombing of Pan Am 103 in 1988, the arrival in the US of a Mauritanian man charged with several terrorist attacks in Mali, the arrival in the US of erstwhile crypto exchange entrepreneur Sam Bankman-Fried to face charges stemming from that total dumpster fire. And, naturally, an...
2022-12-131h 05The National Security Law PodcastEpisode 228: Not *That* George Clinton!Holiday edition! Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss the rapid demise of the attempt by Donald Trump’s lawyers to use Executive Privilege in relation to the classified documents found at Mar a Lago, the arrival in the US of a former Libyan intelligence officer charged with a key role in the horrific bombing of Pan Am 103 in 1988, the arrival in the US of a Mauritanian man charged with several terrorist attacks in Mali, the arrival in the US of erstwhile crypto exchange entrepreneur Sam Bankman-Fried to face charges stemming from that total dumpster fire. And...
2022-12-131h 05The National Security Law PodcastEpisode 228: Not *That* George Clinton!Holiday edition! Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss the rapid demise of the attempt by Donald Trump’s lawyers to use Executive Privilege in relation to the classified documents found at Mar a Lago, the arrival in the US of a former Libyan intelligence officer charged with a key role in the horrific bombing of Pan Am 103 in 1988, the arrival in the US of a Mauritanian man charged with several terrorist attacks in Mali, the arrival in the US of erstwhile crypto exchange entrepreneur Sam Bankman-Fried to face charges stemming from that total dumpster fire. And...
2022-12-131h 05The National Security Law PodcastEpisode 227: Maybe This Episode Should Pay to Get VerifiedHello friends! We're back with a new episode. Tune in as Professor Steve Vladeck and Dean Bobby Chesney chat about (1) the fate of Twitter, (2) the national security implications of the election results, (3) a just-released 2016 NSA IG report, (4) the latest GTMO transfer, (5) Bobby's just-published Harvard Law Review piece (concerning two SCOTUS cases last year which touched on the state secrets privilege), (6) Steve's brand-new substack newsletter--One First--exploring all things SCOTUS, and (7) House of the Dragon.
2022-11-141h 11The National Security Law PodcastEpisode 227: Maybe This Episode Should Pay to Get VerifiedHello friends! We’re back with a new episode. Tune in as Professor Steve Vladeck and Dean Bobby Chesney chat about (1) the fate of Twitter, (2) the national security implications of the election results, (3) a just-released 2016 NSA IG report, (4) the latest GTMO transfer, (5) Bobby’s just-published Harvard Law Review piece (concerning two SCOTUS cases last year which touched on the state secrets privilege), (6) Steve’s brand-new substack newsletter–One First–exploring all things SCOTUS, and (7) House of the Dragon.
2022-11-141h 11The National Security Law PodcastEpisode 227: Maybe This Episode Should Pay to Get VerifiedHello friends! We’re back with a new episode. Tune in as Professor Steve Vladeck and Dean Bobby Chesney chat about (1) the fate of Twitter, (2) the national security implications of the election results, (3) a just-released 2016 NSA IG report, (4) the latest GTMO transfer, (5) Bobby’s just-published Harvard Law Review piece (concerning two SCOTUS cases last year which touched on the state secrets privilege), (6) Steve’s brand-new substack newsletter–One First–exploring all things SCOTUS, and (7) House of the Dragon.
2022-11-141h 11The National Security Law PodcastEpisode 225: Appetite for ObstructionHello, and welcome back to the National Security Law Podcast, with co-hosts Bobby Chesney and Steve Vladeck! In this episode, we dig into the latest filings in the Mar-a-Lago classified documents/presidential records litigation, emphasizing the mounting reasons to believe that the first charges we might see in relation to all of this will involve not the underlying questions about unlawful retention of presidential records or national defense information, but "investigative offenses" such as obstruction of justice. We also touch on "Nashiri Day," explaining what that anniversary signifies, as well as a bit on the recent airstrikes conducted by US f...
2022-09-0154 minThe National Security Law PodcastEpisode 221: GWOT Shots, Part DeuxAnd we're back, with yet another interminable window of extemporaneous frivolity at the front end of what otherwise is a somewhat serious show about the latest national security law developments and debates (seriously). Listen up as co-hosts Steve Vladeck and Bobby Chesney discuss Russia's denial of combatant immunity to foreign fighters in Ukraine (including some Americans), how this pertains to mercenary status, how it compares to US policies on al Qaeda and Taliban fighters, how this in turn relates to the Abd al-Hadi al-Iraqi plea deal at GTMO, how speaking of GTMO they transferred Gul to Afghanistan, and hey speaking...
2022-06-2852 minThe National Security Law PodcastEpisode 220: This Podcast Made the Kessel Run In Less than 12 ParsecsAnd...we're back, and in less than a month, remarkably! Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss (1) the latest seditious conspiracy indictment arising out of January 6th, (2) the Navarro contempt of Congress charge, (3) the latest developments in the lawsuits challenging the Texas and Florida social media content-moderation laws, and (4) enforcement of Commerce Department licensing rules designed to prevent certain US-made aircraft from being taken to Russia (or Belarus) and the way this resulted in what ultimately will be a $400m loss for Roman Abramovich. That, plus more aimless Mets and Star Wars chit-chat than any reasonable person po...
2022-06-071h 03The National Security Law PodcastEpisode 219: And the Podcast Host-Designate Is …Some of y'all were wondering if the show was done-for now that co-host Bobby Chesney has been named the next dean of the University of Texas School of Law. But as it turns out, the main impact of that on the show probably will be no more and no less than to take the level of preparation that he and co-host Steve Vladeck put into things to new lows!
All of which is a long-winded way of saying: we're back with a fresh episode, this time focused on (1) discussion of the leak(s) associated with the Supreme Court's Dobbs case and...
2022-05-1851 minThe National Security Law PodcastEpisode 218: From 28(j) to Enterprise-JOk, ok, it's been a full month since the last episode. But good things come to those who wait! We are back, and hope you'll tune in as co-hosts Bobby Chesney and Steve Vladeck discuss the latest in national security legal news, including:
The questions associated with neutrality and co-belligerency (and especially "qualified neutrality") in relation to US and allied support to Ukraine in the Ukraine-Russia War
The Supreme Court's decision to grant a stay in Lloyd Austin v. U.S. Navy SEALS 1-26, in relation to a district court order (based on the Religious Freedom Restoration Act) barring the Navy...
2022-04-2758 minThe National Security Law PodcastEpisode 217: Talking With Matt Olsen About DOJ National Security DivisionWhat a treat we have for you this week! Assistant Attorney General Matt Olsen, head of DOJ's National Security Division, sits down with co-hosts Bobby Chesney and Steve Vladeck to talk about a wide range of NSD-related topics:
the origins of NSD
the Section 702 sunset next year
indictments against Russian hackers
sanctions enforcement
focusing on China's commercial espionage and transnational repression
the continuing international terrorism threat
the growing domestic terrorism threat
2022-03-2857 minThe National Security Law PodcastEpisode 216: This Podcast Does Not Constitute Legal AdviceAnd we're back! Tune in as Professors Bobby Chesney and Steve Vladeck discuss and debate:
ICC jurisdiction over war crimes on Ukraine's territory
Limits on sharing tactical intel and arms?
The Neutrality Act and its implications for those interested in going to Ukraine to fight
The Supreme Court's twin State Secrets Privilege rulings last week (Zubayda, Fazaga)
Qhatani transferred out of GTMO
A pair of recent rulings against the Navy on its COVID vaccination policy
The House Foreign Affairs Committee's AUMF hearing
All that, plus. what can only be described as perfunctory frivolity :)
2022-03-081h 03The National Security Law PodcastEpisode 214: What Month Is This Anyway?We are back, and even though one of us apparently cannot work this new tech called a "calendar," we're excited to bring a shorter-than-usual episode without having a whole month go by!
Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
The Biden Administration's change of position on the availability of coerced statements for use in pre-trial proceedings in military commissions
The news of the capture, repatriation to the United States, and federal court prosecution of a woman from Kansas who apparently had traveled to Syria to take up arms on behalf of ISIS--and the questions this...
2022-02-0138 minThe National Security Law PodcastEpisode 213: Most Likely to Engage in a Seditious ConspiracySeeing as how 2022 is well underway, it's probably about time we produced a new episode! Tune in for co-hosts Steve Vladeck and Bobby Chesney as they discuss and debate:
The various international and domestic law questions that might arise in that Russia (further) invades Ukraine
The oral argument in Thompson v. Trump (especially the presidential immunity question)
The who-owns-the-privilege question in Trump v. Thompson (not a typo)
The seditious conspiracy indictment against Oath Keepers leaders
What federal statutes have to say about a scenario in which the President might confer authority on a private armed group to "enforce" the law
Belie...
2022-01-201h 06
In Loco Parent(i)sEpisode 2-3: The One Where Steve Gets COVID (with Preet Bharara)In their latest episode, Karen and Steve sit down with Preet Bharara, former U.S. Attorney for the Southern District of New York, to chat about the life of a federal prosecutor; the upsides (and downsides) of having three *older* children; what he's been doing since President Trump fired him; and his forthcoming children's book, "Justice is..."Before that, though, Karen and Steve recap what's been a pretty difficult week on the home front, with Steve testing positive for COVID and quarantining, and Karen having to handle all of the parenting with an ... inconsistent ... school situation. It's...
2022-01-131h 09The National Security Law PodcastEpisode 212: Nakatomi Plaza Holiday Office Party EditionWelcome to our official Holiday Office Party, where we mainly just hope things will go smoother than they did for the good people of Nakatomi Corporation in 1988!
In this episode, co-hosts Steve Vladeck and Bobby Chesney discuss:
The state of the criminal contempt of Congress proceedings against Steve Bannon and Mark Meadows
The D.C. Circuit's ruling refusing to assert post-presidential decision-making authority to Donald Trump in relation to the records of his presidency held by NARA
The SCOTUS cert. grant in Torres (does Congress under its power to raise and support the armed forces have authority to abrogate state s...
2021-12-171h 12The National Security Law PodcastEpisode 209: The 20th Anniversary of 9/11This week on the National Security Law Podcast, we mark 20 years since the 9/11 attacks. Tune in as co-hosts Steve Vladeck and Bobby Chesney share their views on the major legal developments unleashed by that awful day, in a broad retrospective on the era.
2021-09-111h 08The National Security Law PodcastEpisode 206: This Podcast Is Not a State Actor[Updated to fix the audio issue with the original file...though I have to admit, it was very entertaining to hear the hosts speaking an octave too low!) We're back with another round of discussion and debate featuring co-hosts Steve Vladeck and Bobby Chesney, working through the latest national security law developments. Tune in for:
The end of the decade-long run of General Mark Martins as Chief Prosecutor at GTMO
The interagency debate within the Biden Administration regarding whether to concede that the Due Process Clause applies to GTMO detainees (either in the habeas context or more broadly), in connection w...
2021-07-131h 17The National Security Law PodcastEpisode 204: [Insert Inscrutable Title Here]Hello from Austin!
We're back with a new episode! Tune in as your co-hosts Professor Steve Vladeck and Bobby Chesney discuss and debate:
SCOTUS narrows the scope of the Computer Fraud and Abuse Act in Van Buren
SCOTUS grants cert. in Fazaga, adding to the sense that the October '21 Term will be unprecedented for its engagement with state secrets privilege and FISA issues
The Biden Administration withdraws IEEPA sanctions against TikTok and WeChat...for now, at least!
GTMO closure trial-balloon? About that NBC News story that mentions a possible desire to put the long-term military detainees in a Supermax prison...
2021-06-151h 22The National Security Law PodcastEpisode 202: Back in Steve’s OfficeRecording episode 202 was something of a milestone for us, because we met in Steve's office for an in-person recording for the first time since Before. Wow! We're grateful to be back in the "studio," and we found it was a much-more fun experience for us. See if you can detect the difference as we talk about
A GTMO military commission ruling construing the Military Commissions Act prohibition on the admissibility of information derived from torture or cruel, inhuman, or degrading treatment to apply only as to offers of evidence in the trial setting, not to pre-trial motion practice (at least whe...
2021-05-2049 minIn Loco Parent(i)sEpisode 19: "Yes, Netflix: I *Am* Still Watching" (with Liz Vladeck)Karen and Steve are back to talk about the importance of networking in the legal universe, and different attitudes and approaches they have taken both in their own careers and in trying to facilitate connections with friends, colleagues, students, and even strangers. They're then joined by Liz Vladeck (who's quite a lot more than Steve's older sister) to discuss her cutting-edge work on municipal labor and employment law in New York and some of the challenges of being both a parent and a stepparent, and of being a single mom in an era of COVID.
2021-04-291h 12The National Security Law PodcastEpisode 199: Why Is There No SJA Aboard the Starship Enterprise?In this week's episode, co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
The proposed Domestic Terrorism Prevention Act (and DOJ's January 2021 response to an earlier version of the DTPA)
A pair of recent federal prosecutions involving attempt/conspiracy to provide material support to the Islamic State--and corresponding lessons about the way in which terrorism cases are developed using cooperating witnesses and undercover officers.
The DC Circuit's ruling in the al-Tamir (was al-Hadi) military commission case (rejecting the defendant's arguments about the adequacy of the government's proposed remedy for a situation in which the presiding military judge had made rulings...
2021-04-131h 19The National Security Law PodcastEpisode 198: What Tattoo Should Steve Get?Welcome back! This week your co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
The PCLOB's report on Executive Order 12,333
The government's decision to shutter Camp 7 at GTMO, consolidating those detainees with others at Camp 5
The proposed DC National Guard Home Rule Act
The Supreme Court's decision to vacate and remand (for dismissal on mootness grounds) the Second Circuit's decision finding that President Trump violated the First Amendment by blocking followers on his Twitter account--and Justice Thomas's accompanying comments on ways that the First Amendment might be construed to apply to private social media platforms.
A Fourth Circuit's ruling rejecting a...
2021-04-051h 01The National Security Law PodcastEpisode 197: Statler and WaldorfJust 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 mar...
2021-03-2656 minThe National Security Law PodcastEpisode 196: Good…and Terrible!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
St...
2021-03-101h 29The National Security Law PodcastEpisode 195: Sparkly Rainbow Snowboots!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 su...
2021-03-031h 07The National Security Law PodcastEpisode 193: ‘Tis Better to Have Impeached and Lost …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...
2021-02-041h 10The National Security Law PodcastEpisode 188: Not *That* EnterpriseHello 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 N...
2020-12-221h 01In Loco Parent(i)sEpisode 1: Infinite Diversity in Infinite CombinationsIs this on? Karen and Steve Vladeck introduce their new podcast with a little bit of background, including a short history of their relationship, a brief introduction to their family situation (and their two daughters), the impetus for the podcast (including the unique challenges of working high-stress jobs while parenting during COVID); and the first of their regular weekly discussions of "Work Wins" and "Parenting Fails."
2020-12-1046 minThe National Security Law PodcastEpisode 185: The Blah-to-Coup Ratio is IncreasingAnd...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...
2020-11-301h 01The National Security Law PodcastEpisode 184: Make Rule 11 Great Again!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"...
2020-11-1152 minThe National Security Law PodcastEpisode 182: This Podcast Will Keep Going Until They Come For Us!And we're back, after a(nother) week off! What do we have to show for it? Tune is as co-hosts Steve Vladeck and Bobby Chesney as they review:
Steve's Supreme Court argument in Briggs -- more military justice at SCOTUS!
Speaking of the Court: whither the role of the Chief once he's not obviously the fifth vote? Who will be the new swing justice? And what to make of the Court's actions this week in the Pennsylvania and Alabama election cases?
Meanwhile, over at the DOJ National Security Division:
Russian military officers indicted for NotPetya and more
A man convicted of...
2020-10-2252 minThe National Security Law PodcastEpisode 181: This Podcast Has Lots of JitterThey may or may not have more presidential debates, but you'll always at least have us! Tune in for this week's episode as Professors Chesney and Vladeck review the latest national security law developments:
The two so-called Islamic State "Beatles" have now arrived in Virginia to face criminal prosecution in civilian court.
Meanwhile, the trial before a military commission of KSM and others charged with involvement in the 9/11 plot needs a judge, again.
In a horrifying illustration of organized domestic terrorism, the FBI and DOJ today revealed the arrest of five men who were plotting to kidnap Michigan's governor (apparently w...
2020-10-0846 minThe National Security Law PodcastEpisode 179: This Podcast Is “Considerably Recalibrated”So we took a week off without warning because, you know, 2020. But we're back, and we sure don't lack for things to discuss and debate! Tune in as co-hosts Steve Vladeck and Bobby Chesney weigh in on:
The NY Times story reporting a request from AFRICOM to expand targeting authorities involving al Shabaab in Kenya in particular.
The President's denial, and then confirmation, that he favored trying to kill Bashar al-Assad.
DOJ launching a criminal investigation of former National Security Advisor John Bolton.
DOJ moving to interpose the U.S. government as defendant in a defamation suit stemming from President Tr...
2020-09-161h 14The National Security Law PodcastEpisode 177: This Podcast Does Not Have a NavyWe are back with a new episode, bringing you respectful disagreements and discussion--not to mention heaps of frivolity--about the latest national security law news. This week, co-hosts Steve Vladeck and Bobby Chesney discuss:
Attorney General Barr's offer to eschew the death penalty in order to enable the UK to provide the US with inculpatory evidence against the two Islamic State "Beatles" detainees currently in US military custody...and his promise that they mean will be transferred to Iraq for prosecution if this doesn't occur by October 15.
The GAO's legal memo concluding that the senior-most DHS officials do not hold their p...
2020-08-211h 07The National Security Law PodcastEpisode 172: Cleanup on Aisle Trump!This week on NSL Podcast, co-hosts Steve Vladeck and Bobby Chesney review and debate the latest national security legal news, including:
Russian "bounties" on U.S. forces in Afghanistan, including (theoretical) legal implications
A district court ruling finding the government lacks sufficient evidence to hold Adham Hassoun under Section 412 of the USA Patriot Act
The Julian Assange prosecution: new fact allegations that might help distinguish his situation from that of conventional journalists
An actual bill in the Senate addressing the "going dark"/Crypto Wars 2.0 debate: The Lawful Access to Encrypted Data Act
SCOTUS roundup: Article II and the power to...
2020-07-021h 02The National Security Law PodcastEpisode 171: There’s a Spectrum of CorruptionWe're back with an evening recording, as co-hosts Bobby Chesney and Steve Vladeck weigh in on:
The D.C. Circuit's Mike Flynn ruling, and the likely path ahead
The bizarre process of removing SDNY US Attorney Geoffrey Berman
The Bolton book ruling
The Veterans Memorial Preservation Act
PCLOB's FISA session earlier this week
The SCOTUS ruling on Expedited Removal and the Suspension Clause
And then we gripe, a bunch, about rules MLB did and did not adopt for their upcoming rump season.
2020-06-261h 21The National Security Law PodcastEpisode 170: This Podcast Is Not Subject to (Prior) RestraintIn the latest episode of the National Security Law Podcast, co-hosts Professors Steve Vladeck and Bobby Chesney discuss:
Juneteenth, the Emancipation Proclamation, and War Powers
DOJ's doomed effort to get a prior restraint preventing publication of John Bolton's already widely-distributed book (and, in contrast, DOJ's strong prospects for getting a constructive trust for breach of contract)
Espionage Act liability for leaking national security information: a 30-month sentence for a former DIA analyst this week, and speculation about how it would look if DOJ took this approach with John Bolton
The Supreme Court's DACA ruling: wrestling with the nuances of the...
2020-06-191h 09The National Security Law PodcastEpisode 167: Podcast Emergency Action DocumentsWelcome back to the nerdiest national security law show around! Tune in this week for debate and discussion between Steve Vladeck and Bobby Chesney regarding:
Inspector General firings
Presidential Emergency Action Documents
Mike Flynn's sentencing as the OJ Simpson Trial
Apple, FBI, and the Pensacola AQAP plot as the latest salvo in the Going Dark/Cryptowars debate
The ruling of Germany's Federal Constitutional Court in the BND surveillance case
The D.C. Circuit ruling in Ali, a GTMO habeas case concerning the application (or not) of the Due Process Clause
All that...and, well, Sofia the First and Elena of A...
2020-05-211h 06The National Security Law PodcastEpisode 166: This Podcast Has Temporary Absolute ImmunityWelcome back to the National Security Law Podcast, after a one-week hiatus! (You can actually watch the recording here, if you need more Zoom in your life). In this episode, Steve Vladeck and Bobby Chesney discuss and debate:
This week's SCOTUS oral arguments in the Trump business subpoena cases. Is a pragmatic compromise in the works? Will the DA and HPSCI emerge winners?
DOJ called, and they want to abandon their successful prosecution of Mike Flynn because...well, res ipsa loquitor.
Speaking of Mike Flynn, the "unmasking" pseudo-controversy is back.
FISA amendment mayhem! A bid to prevent use of Section 215 for...
2020-05-141h 34The National Security Law PodcastEpisode 165: This Podcast Prefers Its Nothing Burgers to Be Medium RareWhat a fun episode! Co-hosts Bobby Chesney and Steve Vladeck recorded "live" before the Austin Bar Association, as the finale of their day-long Zoom conference. On tap:
The ODNI report on FISA statistics: We have a detailed discussion of the highlights, focusing on whether there is cause for alarm in the renews that FBI in some instances failed to get a warrant (as required by statute) before accessing the content of U.S. person communications incidentally collected via 702.
Pandemia: What's the real story with the latest Defense Production Act order, the one directed at the meat-processing industry?
Flynn-sanity: Will Mike Fly...
2020-05-021h 12The National Security Law PodcastEpisode 164: LIBERATE THIS PODCAST!Is this our most-substantive episode ever? No, no it's not. Is it a sign that co-hosts Steve Vladeck and Bobby Chesney are going a bit stir crazy? Perhaps so. Does it feature cute cameos from Steve's kids and his dog? Yes, that it does! (Which is why you probably want to peek at the Zoom video recording of the session, which is here!) At any rate, tune in for:
Pandemia: We discuss and debate the implications of the Attorney General's cryptic reference to the possibility of Justice Department intervention in litigation against states in connection with state public health policies. More w...
2020-04-2358 minThe National Security Law PodcastEpisode 163: This Podcast Will Have a Very Powerful ReopeningAnd we're back, with discussion of the latest national security law news. (Video of the show here!) This week, co-hosts Steve Vladeck and Bobby Chesney nerd out with the details on:
Can he do that? President Trump says he might adjourn Congress so as to be able to use his recess-appointment power. Inquiring minds want to know: is that a thing?
Oh, also: can he do that? President Trump also says he has "total authority" over whether and when the economy should reopen, and Vice President Pence says that POTUS has "plenary" power in this emergency setting. Inquiring minds also want...
2020-04-161h 17The National Security Law PodcastEpisode 158: What SCOTUS Can Learn from Franklin BarbecueAre you "working" from home now? Perhaps it's time to take a break and enjoy the latest episode of the National Security Law Podcast. In a discussion that takes the goal of let's-not-prepare-too-much to new heights, your co-hosts Professors Bobby Chesney and Steve Vladeck are back to talk about:
potential reauthorization this week of the three FISA provisions that otherwise will expire on March 15th
the public-health imperative of flattening the curve when it comes to the spread of COVID-19 (that is: the critical need to ensure cases don't outpace hospital capacity, including especially ICU capacity), and the resulting need fo...
2020-03-1144 minThe National Security Law PodcastEpisode 154: This Podcast Is Not Just a “Piece of Metal”This week on NSL Podcast, co-hosts Steve Vladeck and Bobby Chesney discuss and debate:
The U.S. government's formal statement to Congress on the legal rationale for its airstrike against General Soleimani
Trumplandia and law enforcement: the related, but distinct, issues associated with the use of the Pardon Power and the relationship between the President and federal prosecutors
Does 18 USC 1114 apply extraterritorially? A D.C. Circuit panel holds that the federal statute making it a felony to murder a federal officer does not apply overseas.
Judicial clerkships: Not a national security topic, but an important one for law students--and the r...
2020-02-1944 minThe National Security Law PodcastEpisode 153: This Podcast Has All the Elsas (But No Eminem)And we're back, with a fresh episode at last. Tune in as co-hosts Steve Vladeck and Bobby Chesney discuss and debate the latest national security law developments. This week they cover:
Donald Trump pressuring Main DOJ to override the sentencing recommendation made by line prosecutors in order to help Roger Stone
Donald Trump pressuring DOD to retaliate against Lt. Col. Vindman (followed by, coincidentally, our discussion of the Military Whistleblower Protection Act)
A quick overview of federal quarantine law, just in case...
The case of Omar Ameen and legal issues associated with non-refoulement
The War Powers bill in the Senate: wha...
2020-02-121h 05The National Security Law PodcastEpisode 152: John Bolton Is Welcome to Testify on this PodcastAfter a wholly-frivolous episode last week, we are back with...well...a slightly-frivolous episode this week. Tune in as your co-hosts Steve Vladeck and Bobby Chesney review and debate:
The likely procedural, jurisdictional, and other legal issues that may arise if and when the Senate issues a subpoena to John Bolton and the White House attempts to prevent his testimony.
The Justice Department's recent decision to concede the impropriety of two of the FISA Title I applications that had been submitted to the FISC in relation to Carter Page, and what this might mean as we continue to barrel towards t...
2020-01-291h 09The National Security Law PodcastEpisode 151: This Podcast Deserves (at Least) One Vote for the Hall of FameOh heavens, what were they thinking? This week on the National Security Law Podcast, your hosts Steve Vladeck and Bobby Chesney bring you...well, not a single second of national security law talk. Nope, instead this episode is all-frivolity from start to finish. Movies, tv, sports, books...anything but the actual topic of the show! But, hey, maybe you could use a break from the headlines? Rest assured, we'll be back next week with our usual format.
2020-01-2345 minThe National Security Law PodcastEpisode 143: We won an award?!?When you are done watching the impeachment hearings and just can't take it anymore, it's time to open up a can of ... National Security Law Podcast! For your happy hour or other occasions, we've got a fresh episode. Tune in as Professors Chesney and Vladeck discuss and debate:
Yesterday's SCOTUS argument in Hernandez (the cross-border shooting case, which Steve argued!)
Alasaad v. Nielsen, in which a district judge rejects the government's position that the Fourth Amendment border exception applies with its usual force in relation to comprehensive searches of phones and other electronics at ports of entry. Key takeaway: there st...
2019-11-1351 minThe National Security Law PodcastEpisode 138: “That’s Nobody’s Business But the Turks”In addition to quoting They Might Be Giants lyrics, this week's episode features cohosts Bobby Chesney and Steve Vladeck taking on three big issues:
The Impeachment Inquiry & the White House Counsel's Letter on Non-Cooperation
President Trump's decision to abandon America's Kurdish allies and thus set in motion the potential release of thousands of Islamic State fighters
A set of newly-declassified decisions by the FISC (and FISC-R) involving the latest round of Section 702 certification, including a finding that compliance problems at FBI (with respect to running US person queries of the 702 database) amounted, in the totality of the circumstances, to a...
2019-10-0953 minThe National Security Law PodcastEpisode 136: This Podcast Needs a Reboot!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 be...
2019-09-1858 minThe National Security Law PodcastEpisode 134: A Very Brady EpisodeAnd 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 ru...
2019-09-0452 minThe National Security Law PodcastEpisode 132: On the Way to Greenland!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 L...
2019-08-2051 minThe National Security Law PodcastEpisode 130: In Case of Vacancy, Who Becomes Our Acting Podcast Host?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 offi...
2019-07-3159 minThe National Security Law PodcastEpisode 129: This Is Quite the War Powers PodcastThis 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 ma...
2019-07-241h 15The National Security Law PodcastEpisode 127: It’s Bobby Bonilla Day!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 disc...
2019-07-011h 07The National Security Law PodcastEpisode 125: Worst of Both WorldsWe 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 t...
2019-06-1855 minThe National Security Law PodcastEpisode 123: Our Gym Was Named for the Espionage Act Guy???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 rel...
2019-05-281h 08The National Security Law PodcastEpisode 121: The Persian Gulf of TonkinIn 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 ha...
2019-05-151h 13The National Security Law PodcastEpisode 114: ManafortniteThis week's show features debate and discussion between co-hosts Professors Steve Vladeck and Bobby Chesney regarding:
Paul Manafort: comparing his first and second federal sentences, and the timing of the new New York State charges
Yemen: Congress considering a bill to compel an end to US support for the Saudi-led coalition in Yemen, and the President promising a veto
The Border Emergency: Congress is poised to pass a bill terminating the asserted national emergency at the border, but that too faces a certain veto
The ARTICLE ONE Act: Heaven save us from awkward, forced acronyms. But perhaps don't save us from...
2019-03-131h 26The National Security Law PodcastEpisode 113 – 702 : Madison :: 215 : HamiltonSo much to debate, so little time! Tune in as Steve Vladeck and Bobby Chesney plow through a host of recent (and not-so-recent) events in the world of national security law:
Fazaga v. FBI - an important 9th Circuit decision on the interaction between the State Secrets Privilege and FISA, not to mention the question of how the reasonable expectation of privacy test might imply in the context of conversations in a mosque.
The demise of the USA Freedom Act phone records program? News that the program may have been dormant for the past six months has raised some hard...
2019-03-061h 13The National Security Law PodcastEpisode 112: And the Oscar Goes To…NSL Podcast!The Oscars may not have a host, but we do! Tune in to our latest episode as co-hosts Steve Vladeck and Bobby Chesney debate a wide range of national security developments from the past week, including:
May "ISIS bride" Hoda Muthana return to the United States? Secretary Pompeo has announced that she may not, on the ground that she is not a citizen. We review and debate a slew of issues this raises, including the legal frameworks for birthright citizenship, making determinations about citizenship status, expatriation, statelessness, and more.
Should the State Department formally designate one or more drug cartels as "...
2019-02-271h 19The National Security Law PodcastEpisode 106: Schools Out For SummerThis week on the National Security Law Podcast, co-hosts Bobby Chesney and Steve Vladeck are joined by Michel Paradis (lead counsel for the defense in the al-Nashiri military commission case) and Captain Brian Mizer (learned counsel for the defense in that case). Tune in for an extensive discussion of the upcoming D.C. Circuit Court of Appeals argument (Jan. 22) in the al-Nashiri case, as well as for broader discussion of the state of the military commission system. As an added bonus after that interview, we also return briefly to the topic of a potential "national emergency" declaration by President Trump, in...
2019-01-141h 14The National Security Law PodcastEpisode 88: A Deep Dive into the Anwar al-Awlaki Case(s)We are back this week with a new "deep dive" episode, this time focused on the issues raised by the U.S. government's use of lethal force against Anwar al-Awlaki--a U.S. citizen who became a key figure associated with al Qaeda in the Arabian Peninsula. Tune in for a detailed backgrounder covering:
the unsuccessful attempt by al-Awlaki's father to obtain ex ante injunctive relief in federal court (and the standing, political question doctrine, and state-secrets privilege issues that suit raised)
the unsuccessful attempt by his father to obtain Bivens damages after a drone strike killed al-Awlaki
the "white paper" the...
2018-08-281h 11The National Security Law PodcastEpisode 87: The D.C. Circuit Ain’t InquorateAnd 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...
2018-08-211h 07The National Security Law PodcastEpisode 83: [Steve] Is the Kiss of DeathWelcome to the latest National Security Law Podcast episode. Though Steve and Bobby both have been moonlighting (here is Steve on the Lawfare Podcast and here's Bobby on the Cyber Law Podcast), there's no place like home, and both are back in the studio this morning to recount and debate the latest national security legal developments. This week we've got:
The Carter Page FISA Order application: How are these things supposed to work, how does it compare to criminal investigation warrants, what role may hearsay normally play, what are the Woods Procedures and what is all this talk about "verification," and...
2018-07-251h 11The National Security Law PodcastEpisode 73: The Penumbras of the CategoryWelcome back to the National Security Law Podcast! This week, Professors Vladeck and Chesney discuss and debate the following:
Doe v. Mattis: The D.C. Circuit has affirmed the injunction barring the government from turning John Doe over to Saudi Arabia. We don't have their opinion yet, but we have ours, and we don't let lack of access to the court's explanation stop us from discussing at length what is likely to happen next!
Darbi Day: Ironically, DOD did just transfer someone else to Saudi Arabia: al-Darbi was supposed to be sent there from GTMO some six weeks ago, under the ter...
2018-05-081h 13The National Security Law PodcastEpisode 72: This Podcast Was Recorded Before, On, or After 9/11No 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) ende...
2018-05-011h 09The National Security Law PodcastEpisode 66: Can You DIG It?Welcome back for another episode of the National Security Law Podcast, with Professors Steve Vladeck and Bobby Chesney. It has been another not-at-all slow week. On tap for today:
The CLOUD Act: It's now the law of the land. We will go into the law's particulars next week, but for now we do want to address what passage means for the pending Supreme Court case involving the government's attempt to force Microsoft to produce data stored in Ireland. Vacate-and-remand, dismiss as improvidently granted, or full steam ahead?
Military Commissions: Never a dull moment with the commissions! Judge Pohl has received dueling...
2018-03-271h 04The National Security Law PodcastEpisode 60: TL;DL – This Is Why We Can’t Have Nice ThingsAn 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 t...
2018-02-211h 15The National Security Law PodcastEpisode 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 its...
2018-02-0243 minThe National Security Law PodcastEpisode 53: Tanks, Bombs, Bombs, and GunsIn this week's episode, Professors Chesney and Vladeck take on three sets of issues under the national security law heading:
ACLU v. Mattis (the US citizen enemy combatant case): Since the last episode, the government has permitted the ACLU to communicate with John Doe, who does indeed want ACLU to pursue habeas relief on his behalf. This quickly led to an exchange of filings disputing whether the currently-pending petition is valid, when the government should have to file its return in response, and whether the judge should renew the ban on transferring Doe in the interim. Your hosts go over al...
2018-01-091h 16The National Security Law PodcastEpisode 49: Around the Horn With Interrogation, Detention, Prosecution, and TargetingIn this week's episode, Professors Steve Vladeck and Bobby Chesney pick up the thread on a handful of familiar issues, and introduce a few new ones as well.
Interrogation: Their first topic is a blend, actually: the case of Akayed Ullah, who attempted to set off a pipe bomb in New York City yesterday. Ullah was taken into law enforcement custody, but soon some quarters were calling for him to be placed in military custody for interrogation purposes. Your hosts will revisit the tangle of issues involving Miranda, presentment, habeas, and more that such arguments raise.
Habeas and military detention: Next...
2017-12-121h 06The National Security Law PodcastEpisode 40: It’s a ConspiracyIn 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 ba...
2017-10-1047 minThe National Security Law PodcastEpisode 39: It Is More Likely Than Not That Our FARRA Discussion Will Bore YouIf 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 att...
2017-10-041h 00The National Security Law PodcastEpisode 38: How Did We Get Through This One Without Saying “Posse Comitatus”?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 Obam...
2017-09-271h 01The National Security Law PodcastEpisode 35: Will This Be the Year of Military Courts at the Supreme Court?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 Q...
2017-09-121h 04The National Security Law PodcastEpisode 28: The North Remembers…the Federal Vacancies Reform Act of 1998???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...
2017-07-2557 minThe National Security Law PodcastEpisode 26: The Impenetrable Podcast UnitIn 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. Movin...
2017-07-111h 12The National Security Law PodcastEpisode 25: So Much National Security Law News…We’ve Reached Our LimitropheHad 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 inv...
2017-06-281h 10The National Security Law PodcastEpisode 24: An AUMF for Westeros?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 t...
2017-06-201h 15The National Security Law PodcastEpisode 22: A Dose of RealityIn 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 lead...
2017-06-061h 07
Oral ArgumentEpisode 137: Steve Vladeck Pincer MoveWhere federal courts, national security, and subtle but important problems lurk, you’ll find Steve Vladeck explaining things. Steve joins us to talk about a seemingly narrow question of the proper application a statute prohibiting civil-office holding by military officers. The issue, though, could hardly be more far-reaching, asking us to consider the principles of civilian control of the military and military non-control of civil life. Also, a little on the use of “treason” to describe the allegations of the Trump campaign’s collusion with Russian operatives and Flynn’s work for Turkey.
This show’s links:
Steve Vl...
2017-06-021h 19The National Security Law PodcastEpisode 18: Disclosing Secrets to the Russians Makes Me WannaCryThe 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...
2017-05-1656 minThe National Security Law PodcastEpisode 13: This Podcast Did Not Go Through the VEP But We Are Releasing It AnywayListeners 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 S...
2017-04-2044 minThe National Security Law PodcastEpisode 10: Is This Podcast Cert-Worthy?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 mil...
2017-03-3059 minThe National Security Law PodcastEpisode 1: What the World Needs Now Is a New PodcastIn 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.
2017-01-2537 min