Episode 39: It Is More Likely Than Not That Our FARRA Discussion Will Bore You

October 4, 2017

If you have ever wondered what statutes, constitutional principles, and judicial precedents come into play when the U.S. government contemplates transferring an American citizen from our military custody to the custody of another government, this is the episode for you.

Building off news reports that the Trump administration is contemplating sending the as-yet-unnamed US citizen enemy combatant to Iraqi custody in order to face prosecution there, Professors Chesney and Vladeck spend much of this episode exploring the ins-and-outs of the legal issues that might arise in that case.  They focus in particular on the non refoulement issue, with special attention to the Supreme Court’s 2008 Munaf v. Geren ruling as well as a statute known as FARRA.

They precede that discussion with news that the Supreme Court has agreed to hear Steve’s cases involving military officers appointed to civilian office (see here for more), and they follow it with an extended review of the extremely-interesting (and potentially quite-controversial) issues that might arise in the event of an acquittal in the currently-ongoing prosecution of Abu Khattala (the alleged mastermind of the Benghazi attack).  The latter discussion focuses on the likelihood that Khattala would immediately come into ICE’s custody pending removal, possibly with the aid of the not-yet-used Section 412 of the 2001 USA PATRIOT Act.  Such a result might well in turn result in a new form of indefinite, long-term, non-criminal detention, but then again the administration might also choose at some point to shift Khattala into military custody (perhaps within the United States, ala Jose Padilla, or perhaps even at GTMO).

Towards the end of the show, Steve and Bobby tout the fascinating new podcast project from Prof. Eric Muller chronicling the human stories associated with the Japanese Internments and Removals of WWII, known as Scapegoat Cities.  Then they wrap up with a series of bone-headed predictions about the MLB playoffs, proving there are some serious gaps in their expertise…

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