Ep. 54: Family Ties or Family Matters?

January 17, 2018

And we’re back, with another weekly dose of national security legal news and analysis.  Fresh off the stove this week we have:

  1. Dalmazzi – Steve is just returned from his first Supreme Court argument, in the Dalmazzi litigation regarding whether military officers may serve both as CAAF and CMCR judges.  Tune in to discover why the room erupted in laughter right before Steve began his argument, and to learn why Justice Kennedy wanted to know if Steve thinks Marbury was decided correctly!
  2. al-Bihani et al. v. Trump – The first grand wave of GTMO habeas litigation largely wrapped up some time ago, but the filing of this renewed petition by a group of 11 detainees reminds us that more litigation is always possible.  In this case, there are arguments to the effect that the armed conflict with al Qaeda has ended, and that President Trump in any event has abandoned reliance on the idea of detention solely for the duration of hostilities in favor of permanent detention.
  3. The FISA Amendments Reform Act – The Section 702 renewal drama is nearing its end.  Last week President Trump quietly directed DNI Coats to introduce IC-wide rules on “unmasking,” and he duly complied on Thursday (including rules specific to unmasking of USP identities involving members of presidential transition teams, naturally). Who knows whether that helped pave the way for the Section 702 renewal bill, but it certainly didn’t hurt.  At any rate, the FISA Amendments Act has now overcome a Senate filibuster, and should pass later this week and become law at some point thereafter.  We wrap this week’s episode, therefore, with an initial close-read of Section 101 of the Act, which imposes a warrant requirement on FBI access to the fruits of 702 collection involving queries using US person identifiers. Suffice to say: it’s complicated.

For better or worse, Bobby and Steve continue to insist on ending the show on a lighter note.  This week’s frivolity? Best. Sitcoms. Ever.

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