April 08, 2020

Episode 162: The Penn Is Mightier Than the Sword!

1 hour 17 minutes

We are “live” from Penn Law today! Thanks to the Penn Law National Security Society, not to mention the magic of Zoom, we recorded today with a virtual audience. Tune in for your co-hosts, Professors Chesney and Vladeck, as they debate:

Paracha v. Trump: A blast from the past: a district court habeas ruling on the legal and factual foundations for holding a GTMO military detainee, one that raises fascinating (and relatively novel) questions about the use of military detention in circumstances where the detainee might not be a member of an AUMF-covered group but who did provide material support to such a group. This in turn leads to a debate about the relevance of international law to that question, and then that leads to a discussion of what international law actually has to say about such fact patterns.

Pandemia:

We’ve got an actual, real-live action under the Defense Production Act: a ventilator-production contract with GM! We review the direct use (and non-use) of “the P!”, noting how the mere invocation of it (even without actual use) not only plays a political role but also, perhaps, plays a subtle but important role in changing negotiation postures.

We’ve got a fascinating Fifth Circuit decision, In re Abbott, that raises complex doctrinal questions about how to reconcile the compelling state interest in public health during a pandemic with individual rights claims (in this case abortion rights, but there are plenty of other possibilities), and what the right reading of Jacobson v. Massachusetts (1905) is with respect to that question. Does all rights claims reduce to the protections of mere rational basis review in such settings? Or should we instead apply the usual doctrinal frameworks for analysis of a particular right, but with full recognition of the unusually-compelling nature of the offsetting government interest? For example, would you really apply mere rational-basis review if a state decided to make it a crime to advocate in favor of relaxing shelter-in-place rules?

Modly, we hardly knew ye! Modly’s ill-advised speech to the crew of the Theodore Roosevelt went over like a lead balloon…one that eventually landed on his own head. (ed. note: that makes no sense….)

Beware, IGs! It’s legal for the president to remove them, but is it right to do so?

FISC fallout from Horowitz Part II: Horowitz is one IG who is not on the hotseat, it’s safe to say! Hot on the heels of his report blasting FBI for shoddy compliance with its own “Woods procedures,” the FISC is out with a strict order demanding to know whether those compliance problems might eventually have led to incorrect or incomplete representations to the FISC…and, what’s more, it wants such scouring done not just for the 29 cases Horowitz sampled but also across the FISC docket, with bimonthly reporting to the FISC on progress. Not a fun time to work at FBI GC!

Sandig v. Barr – Judge Bate holds that to violate the Computer Fraud and Abuse Act’s “unauthorized access” condition, one must engage in some kind of circumvention of security measures, and that it’s not enough that you are unauthorized in the separate sense of doing something that violates “terms of use/service.” This will help solidify a trend of rulings in that direction.

But enough law and policy. Gimme WestWorld Season 3, Episode 4!

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