Episode 129: This Is Quite the War Powers Podcast

July 24, 2019

This week on the National Security Law Podcast, with co-hosts Bobby Chesney and Steve Vladeck:

  • War Powers: Congressional testimony from the State Department’s Acting Legal Advisor confirms that the administration has placed AQIM on the list of “associated forces” within the organizational scope of the 2001 AUMF, notes that the administration has not (yet) determined that Iran is within the scope of either the 2001 or 2002 AUMFs, and much more.
  • Prosecution vs Military Detention: A U.S. citizen who fought for the Islamic State was turned over by SDF to the United States, and is now back in the U.S. facing material support charges in federal court.  We compare and contrast this outcome with the use of military detention in the case of John Doe, of Doe v. Mattis fame.
  • Prosecuting KSM and the other 9/11 Defendants: Meanwhile, on the military commission front, a major clash is looming in the prosecution of KSM and the other 9/11 defendants.  They’ve moved to dismiss the charges on grounds of “outrageous government conduct,” based on the manner in which they had been interrogated.  We explain what that sort of motion involves, compare it to past examples like Jose Padilla, explore its prospects, and project what sort of sanction realistically might be imposed should the defendants actually prevail on the merits.
  • SCOTUS, Executive Privilege, and United States v. Nixon – It’s the anniversary of the Court’s Nixon ruling, which recognized Executive Privilege but also confirmed that it can be overcome.  Timely!
  • Going Dark Part Deux – We note AG Barr’s speech bemoaning the Going Dark trend, and speculate about the prospects for actual legislation in this area (spoiler: prospects are slim).

As always, we end with frivolity (or perhaps it is more accurate to say, there’s actual planned frivolity at the end, in contrast to all the unplanned stuff earlier in the show).  This week?  We breakdown the just-released, expanded trailer for WestWorld Season III.  Critical question: If WestWorld was real and included a WesterosWorld environment, which House would you join?

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