June 26, 2019

Episode 126: Sometimes, “Nothing” Is Important

1 hour 20 minutes

We are back with the latest in national security legal developments, with Professors Chesney and Vladeck agreeing where they can and arguing respectfully (and, let’s face it, nerdishly) where they can’t. On tap this week:

Military Detention and the Constitution: We dive deep into the questions raised by the D.C. Circuits decision in Qassim, which raises the possibility that the Fifth Amendment Due Process Clause might apply in the context of habeas challenges brought by military detainees held at GTMO notwithstanding the Court’s earlier Kiyemba decision.

Cyber Operations Against Iran: After our earlier discussions of a Persian Gulf of Tonkin scenario nearly became reality, we ended up seeing, instead, a possible series of cyber operations against various Iranian targets. We talk about whether this raises the same or similar separation of powers concerns, and more generally place this development in context with our earlier war powers debates.

Who’s Who in the Pentagon Succession Chain: As we approach the half-year mark with only an acting SecDef, and with so many open spots and unconfirmed-but-acting officials, the succession chain is growing ever more complicated. We review the sequence of events likely to unfold with Acting Secretary Esper and others.

NSD Roundup: Hey, counterterrorism prosecutions are still a thing, even if the nation’s attention has wandered elsewhere. We take brief note of three recent cases.

SCOTUS Roundup: Is the administrative state itself doomed, or are we just in for a bit of non-delegation doctrine revival? And if the latter, are we also eventually going to see a new Curtiss-Wright-type case?

Next, let’s head to…Westworld! For our frivolity, we at last are going to review Westworld Season 2. And you thought Facebook collected a lot of data…

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By Bobby Chesney and Steve Vladeck