Episode 95: Not Everybody Be DPH’ing!

October 16, 2018

Welcome to the latest episode of the National Security Law Podcast!  We’re back with our usual mix of discussion and debate about the most-interesting legal developments relating to national security over the past week. And while most such episodes survey many issues, this week we are drilling down on two stories:

First, we’ve got military commission activity: After a very slow week on this beat, the mil coms are back with a vengeance thanks to the al-Nashiri litigation.  We’ve got an extensive review of the recent rulings from the Court of Military Commission Review, exploring issues about the authority of the trial judge to approve (or not) the dismissal of defense counsel, the abatement of the litigation, whether the right to a “learned counsel” is qualified by a feasibility requirement, and–perhaps most significant of all–did the court get it wrong with respect to the burden of proof and discovery procedures when the possibility of monitoring of attorney-client communications emerged.  All that, plus “Jenga tower” challenges “10-layer dip” as the official symbol of the mil com litigation.

Second, we’ve got this bizarre story from Aram Roston at Buzzfeed, reporting that an American private military contractor was hired by the UAE to carry out hits in Yemen. It reads like a law exam issue spotter question, so we treat it like one.  Does the conduct described violate 18 USC 956(a)?  How about 18 USC 2441?  Or 18 USC 959?  Could some of the people involved be recalled to active duty and court martialed (for killing or conspiring to kill civilians who were not DPH’ing at the time), or perhaps subjected to a Quirin-style military commission?  Is there a relevant context of armed conflict?  And did the guy quoted in the article not have a lawyer???

But wait, there’s more.  Much more: we’ve got Tom Clancy-themed frivolity. Which was the best book, when did the series jump the shark, which movies were best, and which actor played Jack Ryan the best?

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