Lawfare Archive: The National Security Law Podcast: Han Shot First

Summary

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Podcast Summary: The Lawfare Archive — National Security Law Podcast: "Han Shot First"

Original Air Date: October 18, 2017 (Rebroadcast December 25, 2025)
Hosts: Bobby Chesney & Steve Vladek
Lawfare Archive Introduction: Isabella Royo

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Episode Overview

This episode, a Lawfare Archive rebroadcast, features Bobby Chesney and Steve Vladeck dissecting some of the most pressing national security law issues from Fall 2017—most notably the ongoing evolution and litigation of the Trump administration’s travel bans, military commission complications in the al Nashiri case, the Microsoft-Ireland cross-border data controversy, nascent "active cyber defense" legislation, and debates around the detention of a US citizen as an enemy combatant. The hosts combine legal acumen, current event analysis, and their trademark pop-culture banter (including an extended Star Wars metaphor) to make complex legal issues accessible and lively.

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Key Discussion Points & Insights

1. Travel Ban 3.0 & Judicial Response

• Topic Introduction [03:17–08:00]: Chesney and Vladek announce breaking news: Judge Watson in Hawaii issued a nationwide Temporary Restraining Order (TRO) on "Travel Ban 3.0."
• Legal Focus: Judge Watson's order is notable for relying on statutory—not constitutional—grounds, following the Ninth Circuit’s approach from Travel Ban 2.0. The opinion critiques the administration’s insufficient national security justification.
• Deference to Executive Power [09:12–12:29]: Vladek is struck by the lack of judicial deference to the Trump administration:

  "Far from ... not getting binding deference, ... they're not really getting any deference at all." — Steve Vladek [10:27] Chesney cautions that TROs are preliminary and not determinations on the merit, yet acknowledges the unusual depth of analysis for such an order.

• Implications [13:40–14:24]: The hosts predict the Supreme Court will have to address these recurring issues, as the administration continues to push successive versions of the ban.
• Tailored Relief: The plaintiffs asked for nuanced relief – e.g., not including North Korea or Chad due to minimal immigration from those nations, showing a tactical legal strategy [14:24–15:13].
• Broader Consequences: They ponder the long-term impact on presidential power, citing Jack Goldsmith’s warnings that precedent set against Trump could constrain future presidents [15:39–15:59].

2. Military Commissions: The Al Nashiri Case

• Cert Denied [16:11]: The Supreme Court declined to review jurisdictional questions (councilman abstention) in the Nashiri case, meaning key legal challenges must wait until after any conviction.
• Defense Team Turmoil [17:53–23:50]: Al Nashiri’s civilian defense team resigned en masse due to concerns over possibly monitored attorney-client communications at Guantanamo, citing ethical obligations when confidentiality can't be assured.

  "There was some dispute ... about the monitoring of communications ... [so] under the relevant rules of ethics, they actually had to withdraw." — Bobby Chesney [18:42]

• Impact: Without a "learned counsel," proceedings stall—potentially affecting other Guantanamo cases, including the 9/11 military commission.
• Procedural Murkiness [24:54–26:35]: The classified nature of these disputes hampers public understanding and resolution. The hosts compare this to how federal Article III judges would likely react more forcefully to such alleged impropriety.

3. Microsoft v. United States & Cross-Border Data

• Case Background [34:03–36:46]: The Supreme Court grants cert in the Microsoft-Ireland email case, testing the reach of the Stored Communications Act (SCA) when data is physically stored abroad.
• Legal Question: Can the US compel a company like Microsoft to produce data stored on foreign servers if it can access it from the US?
• Comparative Law: Analogies are made to habeas petitions and the territorial limits of law.
• Policy Implications [37:37–39:16]: The case is emblematic of outdated statutes facing new technological realities. The hosts anticipate legislative, as well as judicial, solutions.

  "It's a 1986 statute ... if you haven't spent time with it, you should." — Steve Vladek [40:44]

• Relation to Other Cases: The hosts note both Microsoft and the related Carpenter case (on cell-site data) reached the Supreme Court absent the usual "circuit split," indicating the issues’ national importance.

4. Active Cyber Defense Certainty (ACDC) Act

• Bill Overview [42:30–43:45]: Introduction of a bill to allow some forms of "hacking back" by victims of cyberattacks, under defined circumstances.

  "The idea is to carve out a couple of exceptions that would open up a little space for the victims of a data breach ... to take a certain set of actions." — Steve Vladek [43:03]

• Core Legal Debates:
  • What counts as "persistent" intrusion?
  • Scope of permitted actions and whether such actions could place the US government on the hook, under international law, if companies act with prior government notification.
• Legislative Process: Praised as a bill benefitting from genuine expert feedback, open drafts, and iterative drafting—rare in contemporary Congress.

  "This is how it ought to be done in general." — Steve Vladek [50:03]

5. ACLU v. Mattis: US Citizen Enemy Combatant in Iraq

• Status Update [50:30–53:06]: Minimal progress on the habeas petition for a US citizen held as an "enemy combatant" in Iraq. The hosts express frustration at the slow-moving legal process.

  "Every day that passes without ... movement toward actual adjudication of the legality of this man’s detention, to me is that much more problematic." — Bobby Chesney [51:28]

• Historical Perspective: Such a case would once have garnered major headlines; now it is eclipsed by the noisy news cycle.

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Notable Quotes & Memorable Moments

• On judicial skepticism of the executive:
  "Far from ... not getting binding deference, ... they're not really getting any deference at all. In fact, you might even go so far as to say there's ... some anti-deference, to a point."
  — Steve Vladek [10:27]

• On ethics and attorney-client monitoring at Guantanamo:
  "The defense counsel just could not have any confidence that all of their communications ... weren't being monitored ... under the relevant rules of ethics, they actually had to withdraw."
  — Bobby Chesney [18:42]

• On the limits of old tech statutes:
  "It’s a 1986 statute ... if you haven’t spent time with it, you should."
  — Steve Vladek [40:44]

• On iterative legislation (ACDC Act):
  "This is how it ought to be done in general."
  — Steve Vladek [50:03]

• On diminishing public attention to due process/big cases: "All of the things we’ve talked about today ... would have been big headlines ... and whether it’s because there’s just too much else going on ... there’s just not interest in these topics."
  — Bobby Chesney [52:29]

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Fun & Pop Culture: Star Wars and National Security Law

[54:16–end]

• The episode closes with a lively ranking of Star Wars films and an extended riff on using the Han Solo-Greedo shootout to teach the legal doctrine of preemptive self-defense in constitutional law.

• Han Shot First: Chesney uses the original Star Wars scene—where Han preemptively shoots Greedo—as a metaphor for the “prize cases” and questions about anticipatory self-defense in international law.

• They extrapolate further, humorously speculating about the Death Star as a war crime, the law of "interstellar armed conflict," and the absence of military lawyers (JAGs) in the Star Wars universe.

  "When the Death Star blows up Alderaan, that is probably an attack on a protected civilian target. I mean, after all, Leia just told them we don't even have weapons."
  — Bobby Chesney [61:26]

  "I object to characterizing it as a human rights violation as opposed to a violation of the law of interstellar armed conflict."
  — Steve Vladek [61:37]

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Timestamps for Major Segments

• Travel Ban Breaking News & Analysis: 03:17 – 15:59
• Military Commissions & Al Nashiri Developments: 15:59 – 26:15
• Stored Communications Act / Microsoft v. US: 34:03 – 41:07
• Active Cyber Defense Certainty Act Discussion: 42:30 – 50:28
• ACLU v. Mattis / Habeas Litigation (US Citizen Combatant): 50:30 – 54:00
• Star Wars, Han Shot First, and National Security Law: 54:16 – 63:31

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Takeaways

• The episode delivers a nuanced snapshot of the legal turbulence surrounding early Trump-era national security policy.
• It captures judicial, legislative, and ethical tensions as courts, Congress, and practitioners grappled with executive overreach, evolving cyber threats, and the limits of centuries-old doctrines.
• The hosts bring technical legal content to life with relatable analogies, memorable humor, and a clear, engaging style—a hallmark of the National Security Law Podcast.

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Transcript

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[Bobby Chesney]

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[Isabella Royo]

Merry Christmas. I'm Isabella Royo, intern at Lawfare, with an episode from the Lawfare archive for December 25, 2025. On December 16, President Trump added five more countries Burkina Faso, Mali, Niger, South Sudan and Syria to the list of countries whose citizens were banned from visiting the United States this past June, the president also imposed new partial travel restrictions on 15 more countries and fully restricted travel from individuals using documents issued by the Palestinian Authority. For today's archive, I chose an episode from October 18, 2017 in which Bobby Chesney and Steve Vladek discussed the travel ban issued and reworked by the president during his first term, as well as the nationwide TRO that blocked it at the time. The two also discussed the Al Nashiri Military Commission's case, a spat between Microsoft and the nation of Ireland over the Stored Communications act, the status of acl, UV Mattis and more.

[Bobby Chesney]

So Bobby, here We are Tuesday, October 17th about 3:10 Central Daylight Time. And boy is it daylight.

[Steve Vladek]

It is really fine weather outside. This is the time of year when it turns from you know, somewhat challengingly hot in Austin for those who aren't accustomed to it, to the time of year where as it gets worse everywhere else, it just gets better and better here.

[Bobby Chesney]

All the more reason to spend this time indoors with you, my friend.

[Steve Vladek]

I wouldn't have it any other way. So what are we going to talk about today?

[Bobby Chesney]

We have some breaking travel ban news.

[Steve Vladek]

Yeah, it's been a few weeks. Why not?

[Bobby Chesney]

I know, right? It's like, hey, if the shoe fits.

[Steve Vladek]

Okay, so travel ban and then we.

[Bobby Chesney]

Have a lot of stuff going on in the Al Nashiri litigation.

[Steve Vladek]

You know, this has really turned into quite the military commissions focused podcast. That is not what I would have guessed when we started, you know, back in January.

[Bobby Chesney]

You know, I think part of that is just sort of a paucity of what we might have thought of as the more conventional topics. I mean, as we've said before, the sort of world of old school national security law and policy has actually been pretty quiet.

[Steve Vladek]

Well, I feel like military commissions have been quiet for a while and now we're just getting a lot of churn. So Nashiri gives us two separate issues.

[Bobby Chesney]

Although they may be about to be quiet again for a while thanks to one of those issues.

[Steve Vladek]

That's true. We'll see. Well, that's funny, right? So we're going to talk about two issues there. You'll hear what they are later. One SPOILER alert. One happens early in the week and it seems like it's going to open the door to, you know, maybe some acceleration of the commissions. And then right on the heels of that, just because nothing can go right for long at the commissions, something else happens. It looks like maybe this is going to freeze things up.

[Bobby Chesney]

It's just the gift that keeps on giving.

[Steve Vladek]

It is. All right. Speaking of which, we have other gifts to unwrap.

[Bobby Chesney]

Indeed. So we also had on Monday the Supreme Court grant excerpt in the Microsoft cross border data transfer case. I think you heard it here first that that was going to happen.

[Steve Vladek]

Yeah, that was an important one to watch for this term. It combines with Carpenter to make this a term of technology disruption impacting the law. And Oren Kerr, it is the Orin Kerr term. Yes.

[Bobby Chesney]

Just in time for him to leave D.C. so we're going to talk a bit about the significance of the case, what the stakes are, why it actually might matter. It's actually, I think, not as big a case as it might seem at first blush, but still a really interesting one about the role of the legislature in regulating cross border data privacy, data transfer. Then we're going to pivot to speak from the legislature. Bobby, a new piece of legislation.

[Steve Vladek]

Yeah. So there's a bill. This is the best acronym ever. The ACDC bill, the Active Cyber Defense Certainty Act. Active Cyber Defense Certainty Act. ACDC Act. And it is. It is a bill, is it?

[Bobby Chesney]

Back in black. I know.

[Steve Vladek]

I really feel some obligation to insert also, you know, for those about to legislate. We salute you. How about that? Representative Graves had been working on this bill for a while, as those who follow this stuff might, might recall, that he had a really, I thought, kind of a neat way of rolling out his first draft. He put it out there for public consumption, explicitly soliciting feedback. This bill that's actually now been introd clearly shows an iterative process at work and it's got its pros and cons. We'll talk about some of that and then we'll move on to check in just to report in on the developments, or perhaps we should say lack of developments in relation to the case we've been touching on the past four episodes now called ACLUV Mattis. This is the as yet unnamed American citizen held as an enemy combatant in Iraq.

[Bobby Chesney]

It's going to be a short and rather frustrated update.

[Steve Vladek]

It'll be interesting one way or the other. Who knows? We'll keep one eye on our phones to see if anything happens while we're recording. How about that?

[Bobby Chesney]

I'm not holding my breath. Okay, and then. But finally, speaking of things that are in the news today, in honor of the announcement of the name of the new Star wars movie about Han Solo, which, spoiler alert, is going to be named Solo.

[Steve Vladek]

I like that you say that a little. Kind of a pejorative tone, I think. That's all right. It could have been so much worse.

[Bobby Chesney]

Anyway, we thought we would do some the intersection of Star wars and national security law. Because I am sitting across the table from someone who uses the Han Solo Greedo confrontation, both the original version and the sanitized 1997 version, to teach preemptive self defense and constitutional law.

[Steve Vladek]

You know, I think whenever you're thinking of the prize cases, naturally one's thoughts.

[Bobby Chesney]

Are to the cantina, to mos Eisley. Absolutely, 100%. I mean, these are not the. These are not the Civil War era naval blockades.

[Steve Vladek]

You're looking for a more wretched hive of theory and villainy.

[Bobby Chesney]

All right, on that note, which by the way, I'll just say, quick plug Karen for my belated birthday present, took me last week to see the Austin Symphony Orchestra play the soundtrack to Star wars while they, while they, while they projected Episode four.

[Steve Vladek]

I was gonna ask you about that. So in the trivia section, I want you to give us a review of that. That sounded like a pretty fun event.

[Bobby Chesney]

Spoiler alert. The Rebels win.

[Steve Vladek]

Thanks. You're supposed to wait. You know, the listeners don't have time to.

[Bobby Chesney]

I think there's a 40 year moving wall on.

[Steve Vladek]

I guess so.

[Bobby Chesney]

All right, I'll allow that. So let's start with the travel ban breaking news. So right as we were deep in our pre show preparations, which I think consisted of, well, for me that consists.

[Steve Vladek]

Of going to get coffee.

[Bobby Chesney]

What do you do, check Twitter? Yeah.

[Steve Vladek]

And what did you find?

[Bobby Chesney]

And I found that Judge Watson in the district court in Honolulu, that's on Oahu doj, just so we're clear, issued a brand new nationwide tro. That's a temporary restraining order.

[Steve Vladek]

Nationwide, eh? Pagin sambre. Pagin sambre.

[Bobby Chesney]

Basically putting on hold travel ban 3.0. This is the September 24th version. Even after the Supreme Court just last week dumped the first of the two pending cases challenging travel ban 2.0. All of this is just to say, Bobby, it keeps on keeping on.

[Steve Vladek]

Now, what about. There's been a little commentary already about the order, pointing out that there's sort of an unusual reference to sort of athletics in the beginning there. What's going on with that?

[Bobby Chesney]

So, yeah, I mean, Judge, there's an interesting metaphor. I don't know if Judge Watson was deliberately trying to refer to the anthem protests and the broader controversy sounding them. I think maybe he was just trying to be too cute by half about how the more things change, the more they stay the same. That's true both on and off the playing field. And. And his basic holding, it's a 40 page opinion on a TRO, which by the way, I've never heard of before. TROs are usually short.

[Steve Vladek]

Usually you don't realize it's going to be the subject of. You don't know in advance for a dead certainty that it's going to be the subject of intense national and global attention.

[Bobby Chesney]

But so here I think the two big substantive takeaways, Judge Watson relies exclusively on statutory analysis, that this is actually not a big constitutional opinion about the establishment clause or religious discrimination.

[Steve Vladek]

So what exactly is the statutory shortfall according to.

[Bobby Chesney]

Actually, he's relying heavily on the Ninth Circuit's very similar statutory themed opinion in the 2.0 case, which, let's remind our listeners, is still on the books. The Supreme Court last week when they dumped the first travel ban case, that was the Maryland case that went through the Fourth Circuit. The Ninth Circuit case from Travel Ban 2.0 is still alive because Section 6 of the March travel ban, this is the refugee provision, doesn't expire until a week from today, October 24th. So the 9th Circuit, unlike the 4th Circuit, is still on the books. And the district court Judge Watson relied heavily on some of the analyses the 9th Circuit offered in that decision about what the president can and cannot do under his immigration authorities. To say Even travel ban 3.0 runs into the same problems, doesn't have a sufficiently compelling national security justification, seems categorical, et cetera, et cetera.

[Steve Vladek]

So I want to focus in on that. The first thing you said there, that it doesn't seem to have sufficient national security justification. That was something I picked up on my quick skim. This highlights what to me is for purposes of our show and our topic, by far the most fascinating and to some extent, you know, challenging aspects of this litigation, this clear reluctance to give any deference to the executive branch and its purported national security judgment. Now, we all understand the context of why in this case, this isn't an obvious case for going down the way it normally would. I think we all agree that if you had just somehow presented this as a Bush administration or Clinton administration or Obama or go on and on type of case where a judgment about a particular country was made to the effect that there wasn't adequate security vetting going on with decisions about who's coming in from that country, you would certainly predict that most judges, if not all judges, were going to give a lot of weight to the executive branch's assertion that that factual predicate had been satisfied. And it really is a signature of the Trump administration and the lack of credibility it has with at least some of these judges that far from not only are they not getting, they're not getting binding deference, obviously they're not really getting any deference at all. In fact, you might even go so far as to say there's actually some skepticism, some anti deference to a point.

[Bobby Chesney]

I mean, I think, listen, this is a tro, and so I think we gotta be very careful at the risk of being a fed courts nerd. Right. Judges are not supposed to look that hard right behind the record in a TRO case. The whole point is this is not the injunctive. No, no. Have a plaintiffs made a prima facie showing that I should freeze things for long enough to actually take a look at the record and look behind things I really want to caution people, TROs are not merit determinations. Given everything that's transpired over the last nine months, not hard for me to see how a judge, any judge balancing the equities would say putting things on hold while we think carefully about these questions is more compelling, then all of a sudden letting the government go and put this into place. Given how far we've come, all of.

[Steve Vladek]

That makes total sense. And you would expect a short TRO opinion as a result. The 40 pager suggests something a little.

[Bobby Chesney]

Bit more engaged than that. Right. I mean, anyone who suggests that there's not something about this being Trump going on, I think is trying to sell you something. At the same time, I mean, I want to say as emphatically and directly as I possibly can, that I think it's not fair to then thereby assume. And I'm not saying you are, Bobby, I think some folks outside are. That's not fair to thereby assume that these opinions are thus lawless.

[Steve Vladek]

Oh, I agree. Look, we both are aware that some people have maintained that basically there's sort of the mirror image phenomenon going on. The judges are just acting ultra vires. That's clearly, I don't think the case at all. I think these are absolutely legitimate disputes. Reasonable minds can disagree, perhaps, but to suggest that the judges are being lawless, I think is a bit silly.

[Bobby Chesney]

And so where does this go from here? I think is a more interesting question. Right, so just to rewind back to travel ban 2.0. Right. So the government now has two options. They can wait for the TRO to be converted into a preliminary injunction, or they can try to get some kind of emergency relief from the Ninth Circuit. TROs are not supposed to be generally appealable. Right? Right.

[Steve Vladek]

Because they're not supposed to. They're just a way station anyway.

[Bobby Chesney]

Right. And so, you know, we're right back where we were with Travel Ban 2.0. Whatever happens procedurally, however, these questions are answered. To me, the real takeaway from all of this maneuvering and news is that, dear Supreme Court, you may think you've dodged this bullet for the moment, but the bullet is about to take 180 degree turn and come right back at you.

[Steve Vladek]

I think that's right. I think when we were talking about this this summer, we sort of. When you were, I think, quite accurately predicting that there were features of the timeline that meant that the current round, the 2.0 round, wasn't going to go all the way, we nonetheless appreciated that the administration might decide to just leave it at that and having scored whatever points it was going to score, leave it at that. But it didn't. It's gone back to the well with 3.0. And so this isn't going to go away. This will have to eventually be dealt with.

[Bobby Chesney]

And let me just say the last point I'll make, and I think we could probably move on, is, yes, it's a nationwide tro. And so, right page and our mutual friend Sam Bray, the plaintiffs actually were pretty careful this time around to ask for somewhat more tailored relief. So, for example, the TRO doesn't cover North Korea and it doesn't cover one of the other countries on the revised list. It might be Chad. Right. Not because they don't have the same concerns about the president's authority, but because there's so little immigration from those two countries that the plaintiffs couldn't suggest that there was an impact there.

[Steve Vladek]

Interesting. Well, that makes sense. I don't think that does anything to. If you think there's something wrong with national tro.

[Bobby Chesney]

Of course, the national part. I'm just suggesting that insofar as this knee jerk, it's Trump so enjoying the whole thing. I actually think there's some nuance here. Once you peel away the layers, you.

[Steve Vladek]

Might say it's knee jerk Trump. Let's enjoy the whole thing, but let's do it smartly and leave out this one bit so you can keep the focus on the other countries. But I don't think that's what's going on. I think this is a real view on the merits. But I want to underscore that it is incredible to have this persistent example of judges giving really no weight at all to the president's assertion of a national security need. And I don't think it's any surprise. I think this is. This is the Trump administration reaping what it sowed.

[Bobby Chesney]

And as your friend and mine, Jack Goldsmith, has been pointing out for months now, the real danger of a Trump presidency, assuming we survive it, to the future of presidential power. Right, that's right. That the precedents set these days, justifiable though I believe they very well may be right, could be used to weaken the presidency as an institution going forward.

[Steve Vladek]

That's exactly right. Okay, so speaking of going forward, let's go forward to the military commissions. We've got two developments. Let's first knock out the denial of cert in the Nashiri case, which we'd been previewing for quite a bit of time on this show.

[Bobby Chesney]

So, as predict, once again, you heard it here first, we should let you.

[Steve Vladek]

Know that's the name of the show. You heard it here first.

[Bobby Chesney]

Is that the name of the show?

[Steve Vladek]

It will be now. Let me get on Twitter. Hold on. You say something on the air, I'll edit episode 41.

[Bobby Chesney]

You heard it here first.

[Steve Vladek]

Heard what? I don't know.

[Bobby Chesney]

They blow up the Death Star. So on Monday, I think not totally, surprisingly, especially given the denial of cert in the Alba Lul case, the Supreme Court denied cert. Also in the Al Nashiri case, just to remind our listeners, Al Nashiri is charged with, among other things. Wait, you just retweeted something?

[Steve Vladek]

Yes, well, Matt Tate had a good comment. That was exactly what we just said about how the big issue here is. Wait, how'd you know that? It's on your watch.

[Bobby Chesney]

I get alerts when Bobby tweets.

[Steve Vladek]

While you were talking, I was retweeting.

[Bobby Chesney]

Stop distracting me while you're tweeting.

[Steve Vladek]

Tweet from Matt Tate. I was making that point.

[Bobby Chesney]

So, Alan Asheri, basically the question is whether the defendant who's charged with, among other things, responsibility for the bombing of the USS Cole in October 2000, was entitled to challenge the jurisdiction of the military commissions to try that offense before the trial actually took place. The jurisdictional claim, Bobby, I think you and I agree, is a substantial one, whether it's meritorious or not.

[Steve Vladek]

And we both agreed that it would be far better to know now rather than waste all these resources if it turns out this shouldn't be prosecuted.

[Bobby Chesney]

But a divided panel of the D.C. circuit held that instead the court should wait under something called councilman abstention. And the Supreme Court without any noted dissents and with, unlike in Al Balul, Justice Gorsuch participating, denied cert on Monday, meaning that Al Balul is going to have to present his jurisdictional challenge basically in a post conviction appeal. Many, many. And after our second piece of news about Al Nashiri many, many years from now.

[Steve Vladek]

So, so let's get to that second piece of news and then we can relate the two big news. The civilian members of Nasheri's defense team have en masse, resigned and the brigadier general, who's the supervisor of the defense counsel's office, has approved their withdrawing from the representation, including their quote, learned counsel, close quote, which is the term of art for the death penalty specialist, which by, by rule, they must have one.

[Bobby Chesney]

And rule, statute, and probably constitution.

[Steve Vladek]

That's right. So, so what you right now at the moment is you still do have military defense counsel.

[Bobby Chesney]

A lieutenant.

[Steve Vladek]

A lieutenant. Hey, I've seen a few Good men. That can go well. But in this case, you can't handle the truth. It is very likely that that person probably is in the midst of also trying to withdraw for the same reason. Steve, what is the reason? What's going on here?

[Bobby Chesney]

We don't fully know. So this story broke Friday. As usual, Carol Rosenberg from the Miami Herald was all over it. If you're not already following Carol on Twitter and in her writing for the Miami Herald, you're doing national security wrong. We don't know because apparently the source of the dispute between the defense counsel and the government is classified. All that we know from the public statement released by Rick Kammen, who was the learned counsel, one of the three civilian lawyers on Al Nasheri's trial team, is that there was some dispute between the government and the defense counsel about the monitoring of communications between the defense counsel and their client, that the defense counsel just could not have any confidence that all of their communications with their client weren't being monitored and that they. Therefore, it wasn't just that they could and should withdraw. It was that under the relevant rules of ethics, they actually had to withdraw because they could not guarantee that they were able to convey information to their client in a manner that was confidential and protected from disclosure to the government.

[Steve Vladek]

And so they had actually gone and gotten an ethics opinion from Professor Ellen Yashevsky, who, I think is it Cardoza and Ellen had rendered the opinion that they had an ethical duty to withdraw into the circumstances. Now, this issue of possible intelligence monitoring of attorney client communications isn't a new one. This doesn't come from nowhere. This has been an ongoing concern. And earlier in the summer, if I recall correctly, General Kamins had directed the defense counsels that they should not be meeting with their clients anywhere at Guantanamo, which is a lot.

[Bobby Chesney]

Good luck with that.

[Steve Vladek]

Which is a bit of an absolute problem in and of itself because of concerns that maybe some degree of monitoring was happening despite a ruling from one of the military judges at Guantanamo that there shall be no such monitoring. Right. And so one way to look at this is as sort of an escalation of an ongoing dispute where none of us on the outside knows the actual facts as to whether in fact there is any sort of, you know, CIA or other, you know, some sort of intelligence focused attempt to keep an eye on what the detainee communications are, even when they're meeting with their lawyers. If I understand the record right, the office of the Military Commission Prosecutors, General Martins and his office have taken the position that there shouldn't be such Monitoring that the judges have ruled that there shall not be such monitoring that the official US Government position is that there isn't such monitoring. And so there are a couple of possibilities. A, despite all that there's monitoring, in which case there's a huge problem. And it's not just that there's an ethical problem for the defense attorney that's really sort of the tail end of it. The front end problem is people are disobeying the court order. Possibility B is, nope, it's a mistake. It's something they suspect, but they're wrong. It's not occurring. In which case this is an overreaction. Possibility C. Steve, is there space here for some sort of. Well, the left hand doesn't know what the right hand's doing, that there's a murkiness to what something's happening, but it's not quite what people think it is.

[Bobby Chesney]

So, I mean, let me just stress this by saying everything's classified, so we have no idea. Yeah. So one possible version of possibility C is that omc, the Austin Military Commissions. Right. General Martin's. The prosecution believes everything that's saying.

[Steve Vladek]

Exactly. Well, I will say I feel duty bound to say. I guarantee you Mark Martens believes what he's saying.

[Bobby Chesney]

Mark Martin, sure. I don't want to speak for every single person in office, but I would certainly vouch for General Martins and that some other government agency is involved in conducting covert surveillance. So, for example, there was an issue with microphones hidden in the smoke detectors. Right. And this is what led to the earlier this summer memo about not meeting at Guantanamo. It could very well be that it's not OMC that's putting those microphones in the smoke detectors and that's conducting this other surveillance. The problem is that from the perspective of the ethics rules, it doesn't matter which hand of the government is doing the monitoring. What happens if the monitoring is happening at all?

[Steve Vladek]

Right. But that's the interesting factual question. So we're given to. We certainly are getting the impression from the statements made to the press that they have some undisclosable reason to think that something's still happening. I suppose, you know, when I think through, like, how should this unfold? Procedurally, it seems to me that the presiding judge should bring everybody in there and lay the wood on people until they get a clear answer to this. And either the answer is this isn't happening, therefore you people need to get back to work, or it is happening and therefore there needs to be sanctions or some other sort of response that impacts upon the government. But either way, the answer can't be, all right, this has happened, I guess we're just never going to know.

[Bobby Chesney]

Well, and let's be clear. I mean, the effect of this is to frees the Nashiri case in its tracks.

[Steve Vladek]

That's right. Nothing happens.

[Bobby Chesney]

Nothing can happen. Right. Because without a learned counsel, under both the rules for military commissions, the Military Commissions act, and I would argue, although I think I get some pushback, the Sixth Amendment without learning counsel, nothing, there can't be more hearings, there can't be more discovery, there can't be more pretrial preparation. Everything gets put on hold.

[Steve Vladek]

Right. So I think what we're which by.

[Bobby Chesney]

The way, in the same bloody week that the Supreme Court said, no, it's all good. We'll wait until after the trial's over to decide the massive jurisdictional question hanging over this case like a sword of Damocles.

[Steve Vladek]

Well, here's a question. I have no idea. Do you think that the defense team was waiting to see what happened with the cert grant and because it's.

[Bobby Chesney]

No, because it happened beforehand. Right. So the, so just to put the timeline in the comments.

[Steve Vladek]

Okay, that's good to know.

[Bobby Chesney]

The resignations were apparently approved last Wednesday. So that would be the 11th. It took a couple days to get the statement cleared through a pre publication review. Right. Because they had to make sure the statement was kosher. The statement came out on Friday, cert was denied on Monday. But Bobby, a related question is. So if you're, you know, our mutual friend Michelle Paradis. Right. If you're the civilian appellate counsel for Nashiri, do you now petition for a rehearing in the Supreme Court on the denial of cert on the ground that both, first, first of all, the proceedings are completely frozen. So that whole thing about waiting for them to, you know, kind of not going to work. And second, something sketchy is going on. And guess what, Supreme Court, you can help sort this out.

[Steve Vladek]

Yeah. So two, two answers. One is, of course, if I were counsel, then as part of your duty of zealous advocacy, you're going to take what you can get. Sure. It's, hey, what you need for rehearing, right. Is something different and new. Now a trivia question. I know you know the answer. To the best of my knowledge, last time such a move worked and you got reversal of the denial of cert and the, you name it, what is it?

[Bobby Chesney]

Boumedian versus Bush.

[Steve Vladek]

Exactly. Which was itself, if I remember correctly, like the first time in like decades or something that had worked. So could it be similar to the rehearing? Could be. Do I think that actually this is particularly strong on the merits? No, because the timing issue, I'm pretty confident one way or the other this is going to have to get worked out and it's not just going to linger with the case in stasis for six months. Thoughts on that?

[Bobby Chesney]

No, I completely agree on that. I mean, I think not only one way or the other in the Nashiri case, but let's be clear. I mean there's no reason to believe. Right.

[Steve Vladek]

It's going to spill over that whatever.

[Bobby Chesney]

The, whether it's perceived or real. Right. And we don't know the facts. Right. Whatever the alleged problem that led to this mass withdrawal is there's no reason to think that it's Nashiri specific as opposed to something that the government, that the relevant government agency is or is allegedly doing in all of the military agencies.

[Steve Vladek]

So this is a threat to the 911 Commission, the 911 cases as well.

[Bobby Chesney]

This is a threat to the Commission's period.

[Steve Vladek]

Yeah, that's right.

[Bobby Chesney]

And I will say this, I mean, I think if this were happening before an Article 3 court, I don't think you or I have any hesitation that the judge would have a furious in chambers conference where he rakes everybody over the coals and says what the hell is going on? How are, you know, this is not, this is not happening in my courtroom. Right.

[Ben Wittes]

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[Steve Vladek]

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[Bobby Chesney]

Wait, what?

[Steve Vladek]

I've got to catch up.

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[Steve Vladek]

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[Steve Vladek]

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[Bobby Chesney]

My Walmart?

[Steve Vladek]

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[Steve Vladek]

So I think that for all those reasons, eventually, not that long from now, there will be a resolution. But I think we'll have to read the tea leaves to figure out what it was. Either the defense team eventually comes back after some closed proceedings, or there is some dramatic news otherwise.

[Bobby Chesney]

But Bella said, I mean, so I don't know. I mean, so I know the people involved, right? And I have no reason to think that anyone is lying, right? Whatever this is, it's not good, right? I mean, you know, I mean, this is further proof of whatever you think of the legal questions around the commissions, the unique policy problems they raise compared to having all these cases go through.

[Steve Vladek]

The Article III civilian courts, it certainly is another example of the extra friction you get. No question about that. All right, so we'll be able to come back to this story once again. Nashiri it's like the song of the summer. It just stays with you. And now into the fall.

[Bobby Chesney]

Second verse, same as the first. But speaking of the Supreme Court, in the same Orders list that denied cert. Nashiri. The government on Monday also granted cert in The United States vs Microsoft Corporation, a case about that old chestnut, the Stored Communications Act.

[Steve Vladek]

Yes. Ca. Everybody's most loathed statute to try to parse it is really a Doozy from the 1986 Electronic communications Privacy Act. So this was on a cert petition from the Second Circuit Court of Appeals, which had taken Microsoft's perspective on an issue that boils down to this. Microsoft executives in Washington may have the ability to call up the data requested in a warrant, a properly granted warrant, but that practical ability doesn't answer the question if the data is being summoned from servers in Ireland.

[Bobby Chesney]

Yeah.

[Steve Vladek]

And so the idea is. Well, if the. Sir, if the company has architectured its system such that the data is being stored outside the country, then the idea is the fact that the company does have the practical ability to summon it to a desktop in Seattle really is neither here nor there. You can't make it pulled across the border. Now, many a district court in the interim and other circuits has taken the contrary view. I would say. I think we said this the other day. It's analogous to saying that, look, it's like a habeas petition being directed to the Secretary of Defense, the detainees held elsewhere, but it's within the control of the Secretary, the secretaries in the Eastern District of Virginia. Therefore, you've got jurisdiction in the Eastern District of Virginia. Even if what you're doing is having an extraterritorial reach through that person. That's the norm in habeas. Why not the norm for data collection as well?

[Bobby Chesney]

So at least the 2nd Circuit said the answer is because of the unique language of the statute. Right. So this is again, not a constitutional case. This is strictly about section 2703D, I believe. Right. Of the stored communication.

[Steve Vladek]

Not actually a warrant.

[Bobby Chesney]

Right. Although it's sort of a quasi warrant.

[Steve Vladek]

I think it's best to separate it because you don't have to have the probable cause.

[Bobby Chesney]

Totally agree. But so the Second Circuit said, listen, guys, we find the government's position deeply compelling here, but we're bound by the statute. Right. And the statute, as we read it, does not allow a district court to issue a warrant compelling the. Sorry. To issue a de order compelling the production of data stored outside the territorial jurisdiction of the United States. And I think one of the judges. Was it Judge lynch maybe wrote separately to say this is a real problem. Congress ought to fix it. Right. Right. Which isn't. It's a perfectly responsible thing for a circuit Judge to do. Yep. Oh, yeah. It also, I think raises the stakes to some degree of the Supreme Court granting cert. Because. Right. The government presumably could have just run to Congress and said, hey, Congress, fix it. Instead they've gone to the Supreme Court and say, no. In fact, the Second Circuit was wrong.

[Steve Vladek]

Ooh, we could have some interbranch dialogue going on here.

[Bobby Chesney]

That's crazy. That's old school.

[Steve Vladek]

That's old school.

[Bobby Chesney]

I will say though, I mean, listen, I'm sure that folks listening to this are like, well, obviously if you can issue a 2703D order to Microsoft, and if all that a Microsoft technician in New York has to do is summon the relevant data off of a server from Ireland while sitting at his desk in New York, that's within the jurisdiction of the New York court. Well, if that's true, I wonder, Bobby, if that has implications for the privacy rights of foreigners. Right. If data can be accessed not in other words. Right. The modern sort of foreign intelligence surveillance law is premise on the notion of that noncitizens whose data is outside the United States have no expectation of privacy in that data. If that data is being accessed in the United States through US Servers. Isn't there an argument that this actually flips over?

[Steve Vladek]

I don't think so. I think that if they were physically present in the US of course that would be different, but I think they were.

[Bobby Chesney]

What if the data is physically. What if they who are accessing the data are physically present in the United States? What if the search takes place on U.S. soil?

[Steve Vladek]

Well, this is the question that FISA. Right. The larger debate about FISA and territoriality presents. The original 1978 FISA structure itself builds in at least one scenario in the complex definition of electronic surveillance that if you, if you meet that definition, you trigger the obligation to go to FISA order before you collect. And there's one way, one pathway through that that really does kind of prioritize where the physical collection is taking place for certain types of collection. And it's always been an interesting question asked like, why should that really matter if the person, the target and all the rest is overseas and it's a non citizen? Well, your comment kind of raises the same question. I certainly don't think we're going to get any gesture.

[Bobby Chesney]

No, no, no, no.

[Steve Vladek]

But it's a great conceptual question to ask. It is possible, I suppose, that what you might see is some last minute tweaking of whatever bill is eventually going to move section 702 over the next two months, which you know, looming, as every listener knows, sooner or later we will have movement on the 702 issue.

[Bobby Chesney]

Will we though? Or is the Congress at the last, oh, whoops, we forgot about it. Clean reauthorization go.

[Steve Vladek]

I think that if they do get to the point where they just don't want to spend time actually grappling with it, they'll do a two year kick it down the road type thing. But what you might see is some last minute deal making to say, all right, well, among other things, let's clarify the extraterritorial reach of the D order, perhaps as part of a larger reform package deal, if you will. So who knows? In the meantime, big case to consider and together.

[Bobby Chesney]

I mean, we've talked before about the Carpenter case, about the third party doctrine that the court's gonna be hearing. I believe the argument's now been set for early December or maybe late November, like the 29th of November.

[Steve Vladek]

But that sounds about right.

[Bobby Chesney]

It's fascinating to me. So Oren made this point, Bobby on Twitter, that in both Carpenter and Microsoft you have the Supreme Court granting cert in the absence of a split on major questions. In Carpenter on which the government won below, and in Microsoft on which the government lost below. Seems like the Supreme Court has sort of privacy and cross border data transfers on the brain.

[Steve Vladek]

No, I think, and rightly so, I think these are good illustrations of you don't always have to have students a circuit split before the Supreme Court's going to get interested if it's of sufficient national importance.

[Bobby Chesney]

Oh, like whether military commissions contrive domestic offenses.

[Steve Vladek]

You beat me to the punch. I was going to say sometimes you ought to jump in because we need to settle things. In any event, we'll see if those cases actually get US rulings on the merits.

[Bobby Chesney]

Oh, I think, I mean, listen, there's no vehicle problem in either Carpenter or Microsoft, so I think the court's in for a penny, in for a pound.

[Steve Vladek]

I hope so. I'm actually quite pleased. I think this is. We're certainly overdue. These are ripe issues.

[Bobby Chesney]

Although as I mean Oren is fond of pointing out, the Store Communications act is not exactly. It has not necessarily held up well to technological innovations in the 31 years since it's passed. I'm not sure the justices are going to really Enjoy applying a 31 year old statute to the current world of data transfer.

[Steve Vladek]

I can well imagine that in drafting whatever opinion comes out of the Microsoft case that there are more than a few shots taken or a few statements made to try to get Congress to come back to the table on this, and rightly so. It's a 1986 statute, and if you haven't spent time with it, you should.

[Bobby Chesney]

Let's just put it this way. That statute is so old. The Mets won the World. The Mets won the World Series the year it was enacted.

[Steve Vladek]

Oh, that is a great way. Oh, man, I can just picture Mookie Wilson now. And Bill Buckner.

[Bobby Chesney]

And Bill Buckner.

[Steve Vladek]

Ooh. Ouch. All right.

[Bobby Chesney]

If by the bag it gets by Buckner, the Mets are going to win the ball game.

[Steve Vladek]

Let me just digress for a second. What a shame. You know, Bill Buckner had a great career, but, boy, that's all most people are going to remember.

[Bobby Chesney]

Yeah, I mean, so this is a super quick tangent, right? Just to be clear, I think history has been unkind to Bill Buckner. By the time the ball rolls through his legs, the game was tied. The real culprit of the collapse of the Red Sox in the bottom of the 10th inning is Bob Stanley. Okay, the wild pitch tied the game.

[Steve Vladek]

No, that's right.

[Bobby Chesney]

That's right. And by that point, the home team rallying from two runs down in the bottom of the 10th inning in to stave off elimination, the Mets would have had all of the momentum going forward in that game. Buckner was the afterthought. The person who really, really owes Bill Buckner a solid is Bob Stanley.

[Steve Vladek]

That's right. That's right. He's taken all the historic hit. Well, speaking of technology, just how Bartman.

[Bobby Chesney]

Took it away from Alex Gonzalez, the Cub shortstop who booted the double play ball that really allowed that inning to blow up back in the 2003 NLCS.

[Steve Vladek]

Nice reference. Nice comparison.

[Bobby Chesney]

Speaking of segues that don't quite make sense. Right.

[Steve Vladek]

So let's talk about the active, Active Cyber Defense Certainty Act.

[Bobby Chesney]

The ACTC Act.

[Steve Vladek]

Right. Okay. So this is a great and interesting and fascinating piece of legislation. Let me give it just a very quick overview. This is not going to be that much in the weeds, but the idea here is to alter the Computer Fraud and Abuse Act, 18 US Code Section 1030, which is the sort of the. The centerpiece of criminalizing unauthorized or excessive access to someone else's computer system.

[Bobby Chesney]

You know, dirty deeds done dirt cheap, that kind of stuff.

[Steve Vladek]

Yeah, very nice. You just jump in with those references whenever you go.

[Bobby Chesney]

I'm ready to go, Steve.

[Steve Vladek]

If you can come up with another good one, you can have a drink on me. So the idea is to carve out a couple of exceptions that would open up A little space for the victims of a data breach, of a hack, to take a certain set of actions that sometimes are described as active forms of defense. And these run the gamut from relatively unobtrusive reconnaissance type activity. The point being, you're going to respond as the victim by trying to reach back into someone else's network, either to figure out who they were, where they were, where your data went, or maybe more aggressively, deleting the data that was taken from you and exfiltrated and stored on some other server. Going in there and deleting it.

[Bobby Chesney]

Shaking them all night long.

[Steve Vladek]

Shaking them all night long. Or at the most extreme, doing something more punitive and destructive to them, maybe.

[Bobby Chesney]

Putting them on a highway to hell.

[Steve Vladek]

Oh, my gosh. There's no end to the opportunities here. So I'm struggling mightily to keep my mind from spiraling down the song list so I can respond in kind. So the question is, how much of this as a policy matter is desirable? And then secondly, even if you had a pretty good idea of where you wanted to create a little space where the victim would feel like they could without running the risk of liability of prosecution under the Computer Fraud and Abuse act themselves, where you might want them to go, can you really design statutory language that would open up the aperture enough to provide them the certainty that's necessary for either outside counsel or the general counsel to turn to the CEO and say, if you authorize this responsive measure, you're truly not at any significant risk? The statute proposed by Representative Graves has, in section 3, an opening in the Computer Fraud and Abuse act that would be for attributional technology. Now, I like this idea a lot. It says, in effect, that the Computer Fraud and Abuse act won't apply if what you're doing is creating a beacon or some other bit of code that if you have it on your system and someone else happens to take that document or that file that contains your beacon code. This is like the paint bomb, Steve. And when somebody robs a bank and you drop the paint bomb in, they took it from you. You didn't go into their system to inject it into there. And they can't complain when this helps the authorities track them down. So that I think that's a new part that wasn't in the original draft. Like that very much seems pretty reasonable. There's some particulars about how to execute the writing of that exception, but never mind that. But then the statute goes on to try to also create an exclusion for a broader set of responses. It gets A little bit tricky, but the idea is it will be a defense to computer fraud and Abuse act prosecution if an action that falls into the category active cyber defense measure is used. Notably, this would not be an immunity from civil suit. So this is purely just dealing with the prospect of a law enforcement action. So that's an interesting question. Who gets to do it? Anyone who is, quote, a victim of a persistent unauthorized intrusion. Now, I've previously commented that you got to have more of a definition of the term persistent that's too vague. We don't know who's in and who's out, but you get the general idea. They're trying to avoid the de minimis trigger here. In any event, let's assume we've got that covered. What is it you're allowed to do on this measure? An active cyber defense measure is defined to be anything that you, the victim, either yourself do or you hire someone to do. That consists of accessing, without authorization, the attacker's computer to gain information that will A establish attribution. Okay, well that's not unlike the beacon idea. This has to be shared with law enforcement and other US Government agencies. B it will disrupt continued unauthorized activity. So that's a little more aggressive. You're going to have an effect on the machine on the server elsewhere. Or C monitor the behavior of an attacker to assist in developing future intrusion prevention or cyber defense techniques. But this is. But none of this can be something that will intentionally destroy or render inoperable information that's not your information that happens to be on that other system or that will recklessly cause physical injury or financial loss. Third, that will create a threat to public health or safety, which probably needs to be defined a little further. And the list starts going on and on. So you get the kind of picture. There's a bunch of carve outs. The action here is not the reconnaissance, gathering information type stuff. It's the opening of an opportunity to disrupt the ongoing attack. And whether the statute, with its exceptions, really works to create a window where you could do something that would, would stop someone who has access to your system, that's not yet clear to me. I want to parse it a little further. It does seem designed to allow you to delete off someone else's server files that were stolen from you, which I think is. That's the thing that is of most interest in a rapidly developing scenario like this. Now, I think we've said enough to describe it. I think one of the most interesting things here is a point that Christian Eichensare Our friend at UCLA Law has raised on Just Security today where she says, I've heard that blog you've heard of that. We should all check it out along with Lawfare. So this is a reaction to a part of the draft bill that says, by the way, in order to do this you have to, before using your cyber defense measure, you need to notify the FBI's National Cyber Investigative Joint Task Force, lovingly known as the ncijtf. You gotta reach out to your friendly neighborhood NCI JTF and let them know basically what you're proposing to do here. And Kristin points out that this maybe converts what would otherwise be a private action that might have an international effect, perhaps even an effect that the other country might complain of as a violation of sovereignty on some system in their territorial jurisdiction. She says this might have the effect of making it become the de facto responsibility of the United States States under the Articles of State Responsibility. So she is pointing out that on one hand it sounds like smart policy to get the government involved in somehow screening these measures. But she's making the point that the more the government's involved in screening the measures a private company might use in pre approving some particular measure, the more you can begin to make the argument that the US Government's on the hook should the other nation decide it's an international wrong and want to take countermeasures in response. For what it's worth, and I'll post it more length about this later on Lawfare, I don't think it's at all clear that it actually rises to that level of state direction and control or engagement with what's going on. But it's certainly an interesting observation and something that the next round of revisions on this bill probably has to take account of.

[Bobby Chesney]

Certainly I'm all for this kind of interesting back and forth about. I mean, this seems to be a good example of a bill that's actually benefiting from this kind of. Of feedback.

[Steve Vladek]

Yeah, I gotta say, I mean, I think this whole thing is. I'm not saying this restores one's faith in Congress by any stretch, nor that this is exactly what needs to be done, but. But it is actually this process where there are people really engaged in the substance of this bill. I know the Representative Graves also had a conference in Atlanta, brought people in to work on this further. This is, this is how it ought to be done in general.

[Bobby Chesney]

Here, here. Yeah, whatever the substance is.

[Steve Vladek]

Exactly. Now, lightning round. One last thing.

[Bobby Chesney]

Oh gosh, one last.

[Steve Vladek]

John Doe.

[Bobby Chesney]

John Doe. So John Doe, the American Citizen being held as an enemy combatant in Iraq, we're led to believe. Bobby. No real news since our last episode.

[Steve Vladek]

So I don't recall if this happened before or after.

[Bobby Chesney]

In the ACLU's habeas petition, they filed an emergency motion. Right. For an order to show cause.

[Steve Vladek]

But not the one I asked for.

[Bobby Chesney]

No, a slightly different one. Right. But. So I think it was on Thursday. Right. They filed an emergency motion for an order to show cause why at least the name shouldn't be disclosed. Right.

[Steve Vladek]

I thought they also asked for counsel.

[Bobby Chesney]

Access and why they shouldn't be allowed to contact John Doe.

[Steve Vladek]

Right.

[Bobby Chesney]

The government, to my knowledge, has not responded.

[Steve Vladek]

I think that we have not reached the deadline for their response.

[Bobby Chesney]

And Judge Chutkan hasn't done anything.

[Steve Vladek]

Yeah, this is sitting there. It is very fascinating to speculate on the possibilities. We've canvassed the possibilities endlessly on prior episodes. I think we'll just let it lie for now until we get a further substantive development.

[Bobby Chesney]

Yeah. But I'll just repeat something that I said over and over again on today's episode of the Lawfare podcast where Ben and I had at it on the question of how alarmed you should be by this case. Every day that passes without any progress in any development and any movement toward actual adjudication of the legality of this man's detention, to me is that much more problematic.

[Steve Vladek]

I think once the petition was filed, the question's been put. But there is a calendar that comes with it.

[Bobby Chesney]

This could easily be expedited by a sufficiently motivated district judge, and it has not been thus far.

[Steve Vladek]

Could be. But it's also possible that we're going to find out quite soon what the judge's view on this as a result of the order to show cause motion again, that they need to find out has the family as next crime.

[Bobby Chesney]

The relevant questions haven't changed from the last time we talked about them. I'm just surprised that it's been a week and they still haven't been answered. Yep. And just to sort of. I don't know, as Bobby knows, I've been in a bad mood all day and part of why I think I've hit it pretty well on the first 44 minutes of did, but I was.

[Steve Vladek]

Determined to draw out your end.

[Bobby Chesney]

No, it was coming anyway. At any other moment in my professional life. And your career is a year or two longer than mine. I just feel like all of the things we've talked about today, the developments in Nashiri with mass resignations by the the Civilian Defense Council the continuing plight of this detainee without any real progress in the courts. These all would have been big headlines in major media outlets. And whether it's because there's just too much else going on or whether it's because our interests have pivoted, there's just not interest in these topics.

[Steve Vladek]

Well, look, there's no question there's a competition in the bad news category that's pretty fierce. I will say, I think. I think this. It could turn out to be that the Trump administration is really going to commit as a matter of policy, to trying to use military detention in the case of an American citizen. But I think from what we know, the public record, the only fair reading is this situation arose, was kind of thrust upon them, and they are trying to figure out how to get this guy into the prosecution system. And it's not necessarily their fault or lack of effort on their part that they don't have the case yet.

[Bobby Chesney]

No, no. And I have not. Again, I don't think anyone. There's no reason to suspect that anyone here is acting with nefarious motive. If anything, that makes me even more alarmed that solely through inertia, we could be five weeks in without even the beginnings of resolution.

[Steve Vladek]

I don't think you should be. I think you should view it as more or less a comforting factor that this isn't some policy initiative by the administration that would clearly be a more serious situation.

[Bobby Chesney]

All right, so if you're scoring at home, it's Bobby and Ben two, Steve, one.

[Steve Vladek]

But maybe your one counts as like five.

[Bobby Chesney]

Well, I am heavier than both of you. Although Ben could take both of us down.

[Steve Vladek]

Oh, absolutely. Good. All right, let's turn to a happier topic. Let's talk Star Wars.

[Bobby Chesney]

Star Wars. So, big announcement from Ron Howard today. I've lost count. The tenth Star wars movie. Right. Because Last Jedi is the eighth episode plus Rogue One plus the new one. So I think this is the 10.

[Steve Vladek]

This is nine, right?

[Bobby Chesney]

Oh, it was 10. Because you've got the original three, the really bad first season.

[Steve Vladek]

We have to count the prequels, and.

[Bobby Chesney]

Then we've got the Force Awakens, episode seven, Rogue One. Eight.

[Steve Vladek]

Yeah, yeah, yeah, right.

[Bobby Chesney]

Last Jedi, nine. So this movie, which we now know is going to be called Solo 10.

[Steve Vladek]

Yeah. So I think I said last time or the time before that I was really a fan of Rogue One. As was I. So I like the idea of the one off model because it frees you from what, at least judging from Force Awakens, could be the choking, the choking effect of felt obligation to adhere to canon and recreate and relive things and basically take no risks that are interesting. I'm sorry, am I being too harsh on the Force Awakens?

[Bobby Chesney]

Well, I guess. I guess they took a risk when they destroyed all those trees, right? They really pissed off the environmentalists on.

[Steve Vladek]

Starkiller, but jeez, I thought it was pretty ham handed. I have higher hopes for the Last Jedi, but we'll see.

[Bobby Chesney]

I have higher hopes for Solo, although not by the title. Anyway, so we thought we would do two quick things. The first was to give our rough subjective rankings of the nine star or the eight Star wars movies to date because we haven't seen Last Jedi. And the second was to sort of talk about Star wars and national security law. So, rankings.

[Steve Vladek]

First rankings for sure. Let's just real quick. I'm not sure I'll run through all of them, but I will say that I feel like you've got to give the number one spot to the original. A new hope to the original Star Wars. I would follow that.

[Bobby Chesney]

So we haven't disagreed nearly enough on today's episode, but boy, are you wrong.

[Steve Vladek]

How could the original be anything but number one?

[Bobby Chesney]

Now, Empire Strikes Back is because as someone who just saw the original again, this time with a live symphony orchestra performing the score, there are long swaths of the original where nothing happens. Like the 15 minutes when R2D2 and C3PO are wandering the deserts of Tatooine.

[Steve Vladek]

Character development, baby. That's character development.

[Bobby Chesney]

What is developing about their character other than that they're droids that don't do well in the heat?

[Steve Vladek]

Exactly. And how nice is it that this was at a time when it was okay to make a movie that didn't have to have constant reinforcement? Action, action, action. It was okay to have a long, drawn out spot to actually accentuate the drama later on.

[Bobby Chesney]

Listen, there's plenty of moments in Empire Strikes Back where there's no drama in action and it still moves pretty well as a movie.

[Steve Vladek]

I will say I don't really feel it doesn't move well even in the dragged out scenes, in part because it's conveying to you a real sense that the plot's not rushed. The very things that make Force Awakens so painful. How you just jump right into the next development and it just feels like they're checking all the plot boxes.

[Bobby Chesney]

There's no question. So I think you and I are of the view, right, that in whatever order, the original three, to wit four, five and six. Right. Are at the very worst three of the top four depending upon where you put Rogue One.

[Steve Vladek]

Exactly.

[Bobby Chesney]

So, right. That the sort of prequel three. Right. Are probably in reverse order. Absolutely. Next. And that the Force Awakens is at the bottom.

[Steve Vladek]

Oh, I put it. Oh. I think it was better than Phantom Menace.

[Bobby Chesney]

Really. At least there was like original plot elements in Phantom Menace.

[Steve Vladek]

I got one thing to say to you, Jar Jar Binks.

[Bobby Chesney]

I have one thing to say to you. How are we gonna blow it up? I don't know. We'll figure it out.

[Steve Vladek]

I think there's nothing lower on the scale than Jar Jar Binks. Although judging from the preview of the.

[Bobby Chesney]

Last Jedi, there's a funky parrot pigeon looking thing.

[Steve Vladek]

There's some kind of thing. There was some kind of creature in there anyway, so.

[Bobby Chesney]

Alright, well, I just. Force Wickham was so disappointing. So Phantom Maps wasn't disappointing, it was just bad.

[Steve Vladek]

Right.

[Bobby Chesney]

Whereas Force Awakens.

[Steve Vladek]

I thought it was.

[Bobby Chesney]

I had such higher hopes about the Force Awakens.

[Steve Vladek]

So I was, I was reversed. I had no idea. I didn't know how bad it could be until Phantom Menace. That was more of the betrayal now, I think. On a more serious note, I think it's always fascinating to look for ways in pop culture you can test out or tease out in class national security issues. So Steve, the other day in Con Law, we'd reached the point in my chronological, chronologically dominated syllabus. We were in the Civil War and we got to the prize cases and friends and listeners. The prize cases of course is the iconic Supreme Court Civil War decision determining or grappling with the distribution of war powers between Congress and the President. Given that the, the, the petitioners who had lost in these admiralty cases were arguing that the lack of a declaration of war meant that therefore the seizure to through blockade of their ships must have been invalid. And Steve, far from fleeing from any judicial responsibility to interpret the Commander in Chief clause versus the declare war clause and same where the legal doctrinal lines are, the court embraced that rule and said, oh yeah, we'll tell you. And they introduce what amounts to an offense defense distinction. Hey, if America is going on offense, that's the job of Congress to authorize. So big win for Congress on that. But if America's on defense, if we've been attacked, it's not only the authority of the President to use the military in response without waiting for Congress, it's the duty, as the court said.

[Bobby Chesney]

And if you have neither offense nor defense, you're the New York Giants.

[Steve Vladek]

Didn't they win the other day?

[Bobby Chesney]

Yeah, exactly. Perfect. Typical Giants, just when you give up, they're like, oh wait, we actually are a somewhat decent football team.

[Steve Vladek]

They do peak late, I guess. Well, so you know, better never than late cases is pretty straightforward as an offense defensive matter. So what's fun is I thought this was trivia. Yeah, well, that's getting there. So it gets, it gets fun when you start to problematize it a little bit and ask the students to test their intuitions as to what counts as defense. And so I always run through the same set of hypotheticals. I usually have some kind of military action between the United States and Canada with pictures of Mounties, you know, invading the Catskills or something. And the idea is to tease out what people's intuitions are about when anticipatory self defense really is defense anymore. And I found myself in class the other day, Steve, trying to make the point by illustrating, I wanted to claim that most people think that if it's clear and imminent enough that you're about to be punched or shot at, then it's an act of defense to response. And of course, my illustration I came up with on the fly was, you know, like at the cantina when Greedo's about to shoot Han Solo and Sean just. Han Solo just blows him away. And then of course that led to a discussion of how George Lucas baudelairized the damn film and reissued it by changing it and having Greedo shoot first point blank. Han executes a neck breaking, CGI kind of neck twist move to dodge the laser and then fires in a clean act of self defense. And I thought that night that the sense that George Lucas must have had, that it's a little fuzzy whether it's.

[Bobby Chesney]

Good, we might not like Han if he shot first.

[Steve Vladek]

So yeah, and let's just be clear. Maybe it's the name of the episode Han shot first.

[Bobby Chesney]

Done.

[Steve Vladek]

Done.

[Bobby Chesney]

Right.

[Steve Vladek]

So what about you? Is there anything in Star wars you could use as elsewhere in Star wars you could use as a teaching foil?

[Bobby Chesney]

Well, there are some human rights violations. So I believe that when the Death Star blows up Alderaan, that is probably an attack on a protected civilian target. I mean, after all, Leia just told them we don't even have weapons.

[Steve Vladek]

Okay, so I completely agree there's something wrong there. However, I object to characterizing it as a human rights violation as opposed to a violation of the law of interstellar armed conflict.

[Bobby Chesney]

Interstellar liac.

[Steve Vladek]

Which as we all know, under the doctrine of lex specialis, displaces ihrl.

[Bobby Chesney]

Whatever it is, intergalactic Humanitarian law.

[Steve Vladek]

Unless, of course, we have them kind of harmonized and get to the same result. But I think we all agree it's wrong to use the Death Star to attack a defenseless planet.

[Bobby Chesney]

Totally.

[Steve Vladek]

Now, what if? What if, though, there was a military base on that planet?

[Bobby Chesney]

Then it might have been a grossly disproportionate use of force under international intergalactic humanitarian law.

[Steve Vladek]

Oh, this is so good. Oh, this is really not anything else we can draw out of this. There's interrogation scenes we don't really get to. Well, we get to see them in the Force Awakens.

[Bobby Chesney]

I actually. Well, so. Right. So Kylo Ren, of course, tortures, you know, what's her name?

[Steve Vladek]

Rey.

[Bobby Chesney]

Rey. I was thinking Jenner. So I was conflating my new Star wars movies. Right, right, right, right, right. You know, I wonder if is a lightsaber a weapon that is consistent with the use in Bellow?

[Steve Vladek]

Well, sure, because it's an elegant weapon.

[Bobby Chesney]

And it's a defensive. As the Jedi are so fond of telling us, it's for defense.

[Steve Vladek]

I think clearly you have a certain degree of precision with that weapon. I think pretty much all the weaponry analogizes, for the most part, except for the Death Star, which you could analogize to nukes. Everything else looks a lot like it's modeled on kind of conventional navy.

[Bobby Chesney]

Very, very naval.

[Steve Vladek]

Well, you've got armor on land. Right. So.

[Bobby Chesney]

But in the. In. In the skies, it's very naval.

[Steve Vladek]

Oh, absolutely. Yeah. Right down to the admiral.

[Bobby Chesney]

Indeed.

[Steve Vladek]

Other.

[Bobby Chesney]

It's a trap.

[Steve Vladek]

It's a trap. I can't think of any other good ones, although I would encourage listeners if you're thinking of any of the Star wars films and you see a good legal issue playing out there, even if they obviously don't treat it as such. There's no Jaguar in either the Imperial forces, you'll notice, or the rebel forces.

[Bobby Chesney]

Yeah, where are the Jags in Star Wars?

[Steve Vladek]

They killed all the lawyers.

[Bobby Chesney]

That's what you do first. All right, so this gives us a good excuse, Bobby, to remind folks that they really should be tweeting at us. Three different ways to tweet at us. You can tweet directly at the podcast. It's SLpodcast. Or if you prefer, tweet at Bobby. Bobby Chesney. And since I get tweet alerts when Bobby tweets anyway. And then if you're really desperate, I'm tevevladek. We also would love for folks to spread the word, because, man, what better thing is there to do than to Sic us on your friends.

[Steve Vladek]

That's right. We really do need more listeners. Please help us out.

[Bobby Chesney]

We don't need more listeners.

[Steve Vladek]

Oh, we do. Yes, I hungry.

[Bobby Chesney]

We yearn. We want more listeners.

[Steve Vladek]

You can't always get what you want, but you sometimes get what you need. So that's where I'm focusing. I need more listeners. And we need you to go on itunes and go to or your favorite.

[Bobby Chesney]

Podcast platform or your favorite podcast. Tell us what you like, Tell us what you don't like. But in any event, leave five stars.

[Steve Vladek]

One last one. I'm going to say this again next week because I really wanted to plug this and I just remembered to do so. Mike Duncan, the fabulous podcasting pioneer from the history of Rome and now the series Revolutions. His book the Storm before the Storm is about to be published. Pre orders matter for this sort of thing. If you like Roman history or if you don't really know about Roman history and you're curious what the late Roman Republic looks like in relation to our own times, and you just want a really accessible, fun read that digs into sort of the period right before Caesar. This is the book for you, the Storm before the Storm. Pre order it. That will help Mike a lot. And I strongly recommend you listen to his podcast as well, because when the.

[Bobby Chesney]

Visigoths came over the seventh Hill, that's a long way.

[Steve Vladek]

That's gonna be a sequel way down his list. This is Sola and Marius stuff.

[Bobby Chesney]

I was just thinking about Dracai. I was thinking more about the Star Trek Next Generation episode, Best of Both Worlds, Part one.

[Steve Vladek]

Oh, most impressive.

[Bobby Chesney]

When Jean Lupicard's worrying about, I wonder what the Romans thought when the Visigoths came over the seventh hill.

[Steve Vladek]

Well, let me close with this. I think you would in particular like Storm before the Storm, because the major theme is, and this is, of course, to the classicists, this is all familiar stuff, but part of what was the poison in the veins of the late Roman Republic, it was the breakdown of adherence to norms, to conventions and norms.

[Bobby Chesney]

How untimely and unrelevant to the quiet dogmas of the distant past versus our stormy present. On that note, we'll be back in black next week. I got you there, didn't I?

[Steve Vladek]

I thought I was out of the woods.

[Bobby Chesney]

I was wrong. Nope. Never, ever, ever. Thanks, everybody. We'll talk to you next week.

[Steve Vladek]

I salute you. Adios.

[Bobby Chesney]

Stay safe out there. Hey, you want to pay just 10 bucks for your phone service at Boost Mobile? Just 10 bucks for your phone service at Boost Mobile? Yeah. I totally do. I totally do. This holiday, the best gift is for you.

[Steve Vladek]

Pay just $10 a month for the.

[Bobby Chesney]

First two months and $25 a month forever with unlike unlimited data, talk and text offer [e-mail] after your first two.

[Steve Vladek]

Months, you'll pay $25 a month unless you go online or call to cancel requires autopay.