The National Security Law Podcast: The Prenumbras of the Category

By Robert Chesney, Steve Vladeck
Friday, May 11, 2018, 7:33 PM

Note: This episode was published on May 8.

Welcome back to the National Security Law Podcast! This week, we discuss and debate the following:

  1. 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!
  2. Darbi Day: Ironically, the Defense Department did just transfer someone else to Saudi Arabia: Al-Darbi was supposed to be sent there from Guantanamo some six weeks ago, under the terms of his mil com plea agreement. Well, it finally did happen.
  3. Gina Haspel’s nomination: Later this week Haspel will testify in furtherance of her contentious nomination to be the director of the CIA. We argue a bit about the significance of the pre-hearing battles over disclosure of classified information, and more generally set the stage for a hearing in which it will be fascinating to see how the nominee handles interrogation-related questions both historical and prospective.
  4. United States v. Hamidullin: We are several weeks late with this one, alas. Well, back in April, the Fourth Circuit issued a fascinating opinion refusing to extend prisoner-of-war status, or any other basis for combatant immunity from prosecution, to a Russian Taliban fighter who had been brought to the United States for civilian criminal trial.
  5. What to make of the Office of the Director of National Intelligence’s transparency report? ODNI’s Civil Liberties Office has released its annual report showing data on the use of various national-security investigative authorities. We debate the significance of many of the key stats, including but definitely not limited to the headline-grabbing numbers associated with acquisition of call-data records under the USA Freedom Act. (Actually, we mostly agree that those numbers don’t indicate much; the debate is more interesting regarding other stats in the report).
  6. The Lightning Round of Litigation Updates: We’ve got notes on (a) a possible effort by the government to show that the Foreign Intelligence Surveillance Court has no jurisdiction to consider a claim based on the First Amendment to compel release of its opinions; (b) the Navy recalling a reservist who will now be obliged to serve as the “learned counsel” in the capital case against al-Nashiri; and (c) the quiet stipulated dismissal in the steel tarriff challenge brought by Severstal Export.
  7. Trumplandia: We discuss the Logan Act accusations lobbed at John Kerry, the prospect of a grand jury subpoena to the president (seeking testimony), and the recent hearing before Judge T.S. Ellis regarding the scope of the Mueller investigation and its relevance for the case against Manafort.

But let’s face it, the national security legal stuff can get boring after a while. If you listen to the end, it’s because you appreciate the frivolity. And this week, the topic is: What are the top 1990s “teen angst” movies (and what are the qualities that define that category in the first place)? We can hardly wait to know what you think about that. As for us, we’re clueless.