Episode 64: Beware the Ides of CFIUS!

March 15, 2018

So there you are on the beach for spring break, drink in hand and headphones on.  Time for some…National Security Law Podcast!  We’re back with a special midweek episode because, well, we’ll never keep up with the news if we wait till next week (and we are worried you’ll start listening to music–gasp!–if we leave you alone for too long!).

So here’s what’s on tap for today:

  1. The executive branch may be getting a bit more unitary as Secretary Tillerson gives way to Secretary Pompeo at State, and Congress may soon be getting tangled in knots as it wrestles with the confirmation of Gina Hapsel to move from Deputy Director to Director of the CIA.
  2. Prime Minister May has declared Russia’s attempted assassination of a former spy, in the UK, to be an illegal “use of force” against the UK.  Are those fighting words?  We explore the legal implications, including questions relating to the difference (if any) between “use of force” and “armed attack.”  In the end, we contend that this won’t likely matter much in practice, as the real issue becomes whether the UK will impose serious economic sanctions.  Speaking of which…
  3. To the considerable surprise of many observers, the Trump Administration today came out with new Russia sanctions, including a relatively strong statement denouncing Russia for, among other things, interfering in the 2016 election, launching history’s most-costly malware (NotPetya), and the attempted assassination in the UK.  The sanctions include action specifically under Section 224 of CAATSA, which is something we’ve been waiting quite a while to see.  The Treasury Department, at least, turns out to be on the case.
  4. Speaking of economic powers of the executive branch: we also have the CFIUS (Committee on Foreign Investment in the United States) process putting a spike in Broadcom’s attempted acquisition of Qualcomm on national security grounds.  We provide more history than you could possibly want regarding the CFIUS process, and explain why the prospect of falling behind on 5G proved fatal to this deal.
  5. Lest we be accused of neglecting our usual topics, we’ve also got coverage of a key counterterrorism legal document: the statutorily-required report from the Trump administration regarding whether and how it may have departed from the Obama administration’s own report on the domestic and international legal architecture for counterterrorism and combat operations. Perhaps not surprisingly, the publicly-released version of the document is anodyne, reflecting more or less a status quo approach.
  6. We don’t really get into the looming D.C. Circuit oral argument in the Al-Alwi case, which concerns whether the status of the conflict in Afghanistan has changed so as to implicate the Hamdi warning about “unraveling” detention authority.  But we do note the case will be argued next week, and provide a extra-mini preview to be followed by a more serious discussion next week.

And then, of course, there’s frivolity.  Specifically, March Madness frivolity.  Duke and UNC fans will appreciate it, others not so much!

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