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The National Security Law Podcast

Episode 40: It’s a Conspiracy

The National Security Law Podcast

Bobby Chesney and Steve Vladeck

Courses, Politics, News, Education, Government

4.8646 Ratings

🗓️ 10 October 2017

⏱️ 48 minutes

🧾️ Download transcript

Summary

In 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 banc ruling is binding or merely persuasive, and what if anything this portends for the still-pending Nashiri cert. petition. Second, they dig into the habeas corpus petition that the ACLU has filed on behalf of the still-unnamed U.S. citizen held by the U.S. military as an enemy combatant in Iraq. They grapple with the larger significance of the case, its likely future course, and--especially--the procedural and substantive questions raised by the ACLU's attempt to act as John Doe's "next friend" in filing the petition on his behalf. Third, they note the White House's release of National Security Presidential Memorandum 7, which appears to call for the creation of an expanded interagency information-sharing architecture for distributing (and making possible more efficient analysis of) individual-specific data relating to various categories of national security threat.  Some such systems of course already exist, so it is difficult to say from the outside how much this will matter.  Still, the possibility that the initiative will lead to new entities having access to various types of intelligence is bound to raise privacy and related concerns of the same type as have been on display lately in connection with Section 702 data. Fourth, they close the serious part of the show with the decision of the Irish High Court in Data Protection Commissioner v. Facebook Ireland to refer to the Court of Justice of the European Union questions relating to whether there are adequate privacy safeguards when companies like Facebook transfer user data from there to the United States, bearing in mind the ability of the U.S. government to obtain access to that information in some contexts. Gluttons for punishment will listen on only to find themselves subjected, at no additional charge, to commentary on the MLB Playoffs, Steve Rushin's fabulous memoir Sting-Ray Afternoons (a sweet and funny Gen X tale of growing up in the 1970s), and the Monday Night Football/Last Jedi halftime collaboration.

Transcript

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0:00.0

Hello from Austin and welcome to episode 40 of the National Security Law podcast.

0:14.4

Brought to you by the Strauss Center at the University of Texas. I'm Bobby Chesney. I'm Steve

0:18.6

in episode 40. And Steve, I got to say, I'm a little

0:22.9

chilly from my walk outside because it's a little cold in Austin today. Oh, man. It's a freezing

0:27.3

73 degrees here in Austin today. Winter has come. Winter has come and it's leaving because it's

0:33.2

going to be like 94 again tomorrow. This is true. Just in time to get hot again for the second weekend of the

0:38.1

ACL Music Festival. So, you know, ACL Austin City Limits is a fun festival. I will say,

0:42.7

I don't even need to go. I can just sit on my back porch. I imagine it was, you live pretty close.

0:46.9

I'm guessing it was pretty loud. Pretty loud. I live further than you do, and I can hear it pretty clearly. Of course. I can hear the crowd cheering. Oh, could you? That's how. Oh, that was, that was when I walked in. Ah. Yeah. I thought that was the red hot chili

0:57.3

peppers. Same difference, Steve. Same difference. So it's Tuesday, October 10. It's about 12.45 p.m.

1:03.3

Central time. Still, I think, a relatively quiet week in the field of national security law and policy. That's right. We'll be a bit brief today.

1:11.8

Our main topics are, first of all, we've got the denial of cert in the Balul military commission

1:18.3

case. So that'll be number one. Number two, the ACLU habeas petition. On behalf of the John Doe,

1:25.0

U.S. citizenity combatants. Right. And a good- old-school throwdown between me and Ben Wittes on the subject.

1:31.3

Okay, we'll explore that.

1:33.3

And then we'll have brief notes following that first on National Security Presidential

1:38.3

Memorandum Number 7, which dropped last Thursday and maybe isn't...

1:43.3

Collect them all. Yeah.

1:44.6

Well, you can't.

1:45.6

Most of them don't get released publicly, but portions, not all, but portions of this one did.

1:49.8

We'll explain what it is and we'll identify what is probably going on here and why it's

1:55.0

probably not that big a deal of anything to get excited about from a legal perspective, but nonetheless

...

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