Episode 61: Judge Pohl Says: “Hold My Beer”

The National Security Law Podcast

Bobby Chesney and Steve Vladeck

Courses, Politics, News, Education, Government

4.8 • 646 Ratings

🗓️ 27 February 2018

⏱️ 68 minutes

🔗️ Recording | iTunes | RSS

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Summary

No shortage of topics this week, but then again there was no shortage last week, or before that, or...ever. So, what's on tap? Tune in to hear Professors Chesney and Vladeck explore: A host of Supreme Court developments, including action relating to DACA, immigration detention and the due process clause, Patchak and the question whether Congress can direct courts to dismiss a class of cases, and-especially-the United States v. Microsoft litigation and the question whether Microsoft can refuse to comply with a warrant where the data in question is held on a server outside the United States. That last topic in turn leads to an overview of pending legislation--the CLOUD Act--that might resolve the issue in an appealing way. A host of Military Commission developments, including (in)action on the Darbi plea-based transfer, clarification on the appealability of Judge Spath's remarkable abatement ruling, and a bold move by Judge Pohl to compel Secretary Mattis to justify the firing of Convening Authority Harvey Rishikof and his legal advisor Gary Brown (in the context of an unlawful command influence motion). Suing terrorists--and their banks: a discussion of JASTA, the Anti-Terrorism Act, and the recent Second Circuit ruling in Linde v. Arab Bank. The Schiff Memo, the #Mehmo, and more...when will it all end? A new case for the Foreign Intelligence Surveillance Court of Review--an appeal by the government from a split en banc FISC ruling finding standing for the ACLU and MFIA to press a First Amendment claim to seek access to FISC rulings. And last, but not least, we review some recent letters from State and Defense, sent to Senator Kaine, reviewing Trump administration views on the legal bases for the US military role in Iraq and Syria. Alas, little frivolity this week. But don't bet on that to continue!

Transcript

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0:00.0	Hello from Austin. Welcome to episode 61 of the National Security Law podcast. We're brought to you by the Strauss Center at the University of Texas. I'm Bobby Chesley. I'm Steve Lodick. A busy day, Bobby, in National Security Law Land.
0:22.0	Well, a busy day at the Supreme Court, Steve. Busy day at the Supreme Court. As we speak,
0:26.2	it's 10 a.m. Central time, right, on this gray, wet, ugly Tuesday. Steve, this is not the weather
0:32.1	I ordered for Austin. I was going to say, I did not leave D.C. for this. It is warmer, at least.
0:39.2	See, we're already diverging.
0:44.6	So the Supreme Court this morning, as we speak, is hearing oral argument in United States versus Microsoft.
0:47.2	Bobby, a pretty important case about cross-border data.
0:52.5	Well, then we probably better say something about it in this episode, even though we don't actually know what's happening in the argument right now.
0:53.7	I can predict one thing.
0:55.7	Justice Thomas did not ask a single question.
0:57.6	Well, that's a safe prediction.
1:02.2	We'll definitely have something to say about Microsoft v. Ireland, and we'll keep one eye on Twitter as a recording in case Oren Kerr or somebody else comes rushing out of the court to
1:07.0	tweet out some interesting tidbits about how the oral argument went.
1:10.3	Yep.
1:10.6	And then I think there's other SCOTUS news to cover.
1:12.9	For example, yesterday the Supreme Court denied the petition for cert before judgment in the DACA case.
1:17.4	We'll talk about what that means.
1:18.9	Two decisions of at least tangential interest, I think, to our field this morning.
1:23.2	The court ruled five to three in Jennings v. Rodriguez in favor of the government in an immigration detention case.
1:29.3	And sort of four to two to three in this interesting separation of powers case, Patrick, in which I'm involved, which we'll talk about.
1:36.7	Then we're going to pivot to, well, our favorite courts of the moment, the military commissions of Guantanamo.
1:42.5	I've got to say, when we started this, what, 61 weeks ago?
	...

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