And…we’re back! Fresh off of Thanksgiving, Professor Chesney and I are (all too) fired up to discuss the latest national security law news (not to mention a bunch of stuff that just isn’t relevant to this (or any decent) podcast). This week some familiar storylines resume, and a few new ones appear:
First up: The slowly-unfolding saga of the still-unidentified U.S. citizen held in military detention in Iraq. At long last, the district court will hold an actual hearing in ACLU v. Mattis, this Thursday, as a first step towards determining whether the ACLU even has standing to seek habeas review on John Doe’s behalf.
Next: Off to the Supreme Court we go! As an initial matter, the Court has denied cert. in Jaber v. United States, letting stand a D.C. Circuit opinion finding that the political question doctrine bars adjudication of a Torture Victims Protection Act claim by relatives of Yemeni victims of an alleged American airstrike. Then we have a preview of Carpenter (which will be argued on Wednesday), which raises the possibility that the Court will take a bite out of the third-party doctrine at least for cell-site location databases–and, in doing so, set off waves of litigation seeking similar constraints on that doctrine in other digital contexts. Your hosts note that a decision on these lines might well set the stage for litigation testing the notion of a foreign-intelligence exception to the warrant requirement, especially in connection with government access to telephone dialing records under the USA Freedom Act. And the Supreme Court tour then winds up with quick notes on the latest twists in the Travel Ban litigation.
Next up: Back to GTMO, for an update and assessment of a slew of weedy, intertwined issues involving the authority of a military commission judge to compel civilian witnesses to testify, to have the last word on whether defense attorneys can withdrawal, to enforce its views with contempt sanctions, and so much more. All that, plus the question of how the heck to get these issues resolved and the Nashiri case moving forward again.
Last (substantively): A quick review of the CFPB leadership clash, seen through the lens of how similar questions might play out in a weightier context–i.e., if the current Attorney General should decide to make a career move.
Last (ridiculously): I know what you are thinking: You are dying to know what your hosts think are the all-time great submarine-themed movies, and the worst of that lot too. Stay tuned if the phrase “Con! Sonar! Crazy Ivan!!!!” warms your heart!