Episode 105: That Doesn’t Mean You Do It Stupid!

January 7, 2019

If your New Year’s Resolution involves finding a podcast exploring the legal aspects of major national security events and institutions, we are here to help!  Start of 2019 the right way with our first episode of the year.  We’ve got:

  • Syria withdrawal: We explore the separation of powers between Congress and the President in relation to the withdrawal order and, especially, the possibility of keeping a ground force at al Tanif as a way to counterbalance Iran in Syria.  John Bolton says that Article II will do the trick. Will it?  Even if so, beware the serious War Powers Resolution “clock” issue that then emerges!
  • Syria and detainees: Withdrawal would also have serious implications for Islamic State detainees held by SDF, including–apparently–two US citizens.  Some are calling for those two to be brought into US custody at GTMO.  What are the full array of options for those detainees, and what pros and cons for each?
  • Syria and the UN Charter: If the US stays in Syria but shifts to a counter-Iran rather than counter-IS mission, the international law issues surrounding our role become dicier.
  • The resignation of Jim Mattis and the arrival of another acting cabinet secretary
  • Paying for the Border Wall by declaring a national emergency: We unpack the issues raised by the potential invocation of the National Emergencies Act and then 10 USC 2808, with an emphasis on the critical role that national security fact deference would play in the inevitable litigation challenging the propriety of invoking 2808.  We also explore the looming eminent domain obstacles, and ask the question: If DOD funds *do* get moved around to pay for a wall, what otherwise-funded projects then don’t get built?
  • The D.C. Circuit slaps back one nationwide injunction concerning the Mattis Rule on transgender servicemembers, but two other such rulings remain in place.  Will SCOTUS grant cert. before judgment?
  • SCOTUS also has some important political question doctrine cases it is considering hearing.
  • The military commissions took a fresh hit this week when we learned that the replacement for Judge Spath *also* has been seeking appointment from DOJ as an immigration judge.  The oral argument at the DC Circuit next week is going to be fascinating…
  • Harold Martin, the former NSA contractor charged with retention of national defense information, lost his bid to get the fruits of various search warrants suppressed, but did prevail in getting his statements to the FBI suppressed (lesson: if you cuff the guy and drop him to the floor at first, and control his movements for several hours while excluding access by his partner, you do run the risk of having the whole thing treated as constructive arrest even if you repeatedly tell him he’s not under arrest).
  • DOJ NSD takes on Chinese commercial espionage again in two more cases, and gets strong sentences in a pair of Islamic State-related cases.

And then we have the frivolity.  Mean Girls.  It’s fetch, we promise.

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