The National Security Law Podcast: [Steve] Is the Kiss of Death

Robert Chesney, Steve Vladeck
Friday, July 27, 2018, 11:09 AM

Welcome to the latest National Security Law Podcast episode.

Published by The Lawfare Institute
in Cooperation With

Welcome 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:

  1. 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 what should one make of it all?
  2. Russia, Ambassador McFaul, extradition, and MLATs: President Trump’s flirtation with the Russian proposal for U.S. assistance interrogating our own former ambassador to Russia set off shockwaves. In the background are questions about constitutional protection against involuntary extradition, as well as the rules for questioning witnesses under color of a Mutual Legal Assistance Treaty. We foreshadow a potential litigation dispute should Russia actually invoke the MLAT in this setting and then the Trump Administration fails to invoke the “essential interests” exception to it.
  3. Revoking clearances to punish (and chill) dissent: In a strong bid for authoritarian impulse of the week, the White House is exploring punitive revocation of clearances held by an array of prominent former national security officials who have been vocal in criticizing the president. Relying on this terrific primer from Brad Moss at Lawfare, we review the legal framework.
  4. Non-U.S. detainees held by SDF in Syria & potential U.S. prosecution of 2 ex-British IS members: We again note that about a 1000 IS fighters are held in SDF custody in northern Syria, including many European citizens. There’s no chance they’ll stay there forever, so disposition questions abound. A pair of them who had their British citizenship stripped and who are linked to several especially-heinous crimes may well end up in the U.S. for prosecution. But will that be a civilian court or a military commission? And will the British be able to pass relevant information to us for this purpose if the death penalty is on the table?
  5. Doe v. Mattis draws closer to an end: The ACLU and the Justice Department jointly notified Judge Chutkan that they are working on a negotiated settlement and will report further by July 30 (in time for the next episode, we hope!). If they do a deal, it likely will involve either release into Syria as DOD has requested (but this time with travel documents, perhaps?), or maybe even release to Saudi Arabia or some third country after all.
  6. Almost another Doe v. Mattis: Turns out Doe wasn’t the only American caught by SDF fleeing IS territory. Last month they captured Ibraheem Musaibli, from Michigan. But instead of transferring him to U.S. military custody in theater, he’s been shipped to the U.S. for civilian prosecution. At the same time, so too has been Samantha Elhassani of Indiana, who had gone to Syria with her kids and her IS fighter husband, and now faces a lying-to-FBI charge.

Oh, you came here for the frivolity? We have a segment that is as solid as a rock. Solid as The Rock, in fact.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.
Steve Vladeck is a professor of law at the University of Texas School of Law. A 2004 graduate of Yale Law School, Steve clerked for Judge Marsha Berzon on the Ninth Circuit and Judge Rosemary Barkett on the Eleventh Circuit. In addition to serving as a senior editor of the Journal of National Security Law & Policy, Steve is also the co-editor of Aspen Publishers’ leading National Security Law and Counterterrorism Law casebooks.

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