In this week’s episode, Professor Chesney and I take on three sets of issues under the national security law heading:
- ACLU v. Mattis (the US citizen enemy combatant case): Since the last episode, the government has permitted the ACLU to communicate with John Doe, who does indeed want ACLU to pursue habeas relief on his behalf. This quickly led to an exchange of filings disputing whether the currently-pending petition is valid, when the government should have to file its return in response, and whether the judge should renew the ban on transferring Doe in the interim. Your hosts go over all the fine details, and then move on to a rather-extended debate on how the legal merits will play out should the petition get that far (covering issues including the applicability of the AUMF to the Islamic State, and the relevance of Hamdi v. Rumsfeld vis-a-vis the Non-Detention Act as applied to this situation).
- Dalmazzi v. United States: Very soon, co-host Steve Vladeck will be making his first appearance arguing before the Supreme Court of the United States, in Dalmazzi. Your hosts will explore the larger significance of the case, and then talk through a late-developing aspect of the case: whether it presents a classic Marbury v. Madison problem?
- FISA: As happens every week of late, the substantive portion of the show wraps with a review of what’s happening in relation to surveillance law, as we continue to await the results of Congressional sausage-making in relation to renewal of Section 702. This week, the check-in includes not only notes on where 702 renewal stands, but also news about the Supreme Court denying certiorari in a Ninth Circuit case involving the use of 702 fruits in a criminal trial, and a decision by the FISC to certify to the FISA Court of Review an en banc FISC decision recognizing ACLU’s standing to seek disclosure of certain FISC opinions. Whew!
Of course, we good professors can’t leave well enough alone, so for those who are gluttons for punishment you’ll be treated at the end to discordant thoughts on: the riff-off in Pitch Perfect 3, the Golden Globes (both the awards, and the #MeToo overhang), and the likely outcomes in this weekend’s NFL playoff games. If there’s ever a Golden Globe for podcast episodes, don’t hold out hope for this one!