Episode 39: It Is More Likely Than Not That Our FARRA Discussion Will Bore You

The National Security Law Podcast

Bobby Chesney and Steve Vladeck

Courses, Politics, News, Education, Government

4.8 • 646 Ratings

🗓️ 4 October 2017

⏱️ 60 minutes

🔗️ Recording | iTunes | RSS

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Summary

If 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 attention to the Supreme Court's 2008 Munaf v. Geren ruling as well as a statute known as FARRA. They precede that discussion with news that the Supreme Court has agreed to hear Steve's cases involving military officers appointed to civilian office (see here for more), and they follow it with an extended review of the extremely-interesting (and potentially quite-controversial) issues that might arise in the event of an acquittal in the currently-ongoing prosecution of Abu Khattala (the alleged mastermind of the Benghazi attack). The latter discussion focuses on the likelihood that Khattala would immediately come into ICE's custody pending removal, possibly with the aid of the not-yet-used Section 412 of the 2001 USA PATRIOT Act. Such a result might well in turn result in a new form of indefinite, long-term, non-criminal detention, but then again the administration might also choose at some point to shift Khattala into military custody (perhaps within the United States, ala Jose Padilla, or perhaps even at GTMO). Towards the end of the show, Steve and Bobby tout the fascinating new podcast project from Prof. Eric Muller chronicling the human stories associated with the Japanese Internments and Removals of WWII, known as Scapegoat Cities. Then they wrap up with a series of bone-headed predictions about the MLB playoffs, proving there are some serious gaps in their expertise...

Transcript

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0:00.0	Hello from Austin and welcome to episode 39 of the National Security Law podcast brought to you by the Strauss Center at the University of Texas.
0:17.4	I'm Bobby Chesney.
0:18.4	I'm Steve Lodick and Bobby. I think our music is back from vacation.
0:21.8	Oh, I missed it last week. I hadn't noticed it had gone on vacation. I had not noticed it either,
0:26.8	which might have something to do with the fact that I had forgotten to mix it into the final.
0:31.0	Note to future selves. Probably not a great idea to record the podcast right up to a meeting that nine of us could be late for. Oh, that's true. We were in a bit of a hurry last time. It just goes to show you this
0:41.4	program is done by real people. With no help. With no help and with a real lack of production
0:47.9	skills. We like to think it's part of our analog charm. You should put this out on vinyl.
0:52.8	It sure ain't digital. So it's, let's see, it's Wednesday
0:55.9	morning, another, another Wednesday episode, C-Supra, life is rough and busy. October 4th.
1:01.4	October 4th. 1050 central time. So who knows what else happened to do?
1:05.2	What's going on, Bobby? There's stuff. There's stuff. We've got a lot to talk about. So
1:08.2	first and foremost, congratulations to you, Steve. Your cases, your military judicial...
1:14.7	Whatever. Whatever. What do you recall these? Your cases got cert granted.
1:19.2	Steve Lattick is going to go argue with the court. Watch out world.
1:22.8	I'm excited about this. This is really cool. I may or may not go and sit in the front row and offer, you know, whispered commentary.
1:29.3	You know, no, you're doing it wrong. You know, at some point, at some point this might actually mean that I will force you to actually read the briefs and take a position on whether you think we're actually right.
1:38.7	I will. Since you got certain granted, I will start paying attention.
1:41.6	But, you know, just to quickly remind folks, I mean, the cases are basically about the judges on the intermediate appeals court for the Guantanamo
1:50.1	Military Commissions and whether their appointment to that court as military officers
1:54.6	violates the Civil War era statute that requires military officers to receive special
1:59.5	permission from Congress before they can
	...

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