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
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.
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.
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]
Fun & Pop Culture: Star Wars and National Security Law
[54:16–end]
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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.
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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]
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
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.