Episode 40: It’s a Conspiracy
In this week's episode, Professors Chesney and Vladeck zero in on four recent developments involving law and national security. First, they explore the Supreme Court's decision not to review the splintered decision of the en banc D.C. Circuit in Bahlul (in which a plurality of the Circuit concluded that it was constitutional for Congress to give military commissions the capacity to adjudicate a conspiracy charge, notwithstanding the government's concession that conspiracy standing alone was not a violation of the international laws of war). They consider what this means for the commissions going forward, whether the rationale of the en banc ruling is binding or merely persuasive, and what if anything this portends for the still-pending Nashiri cert. petition. Second, they dig into the habeas corpus petition that the ACLU has filed on behalf of the still-unnamed U.S. citizen held by the U.S. military as an enemy combatant in Iraq. They grapple with the larger significance of the case, its likely future course, and--especially--the procedural and substantive questions raised by the ACLU's attempt to act as John Doe's "next friend" in filing the petition on his behalf. Third, they note the White House's release of National Security Presidential Memorandum 7, which appears to call for the creation of an expanded interagency information-sharing architecture for distributing (and making possible more efficient analysis of) individual-specific data relating to various categories of national security threat. Some such systems of course already exist, so it is difficult to say from the outside how much this will matter. Still, the possibility that the initiative will lead to new entities having access to various types of intelligence is bound to raise privacy and related concerns of the same type as have been on display lately in connection with Section 702 data. Fourth, they close the serious part of the show with the decision of the Irish High Court in Data Protection Commissioner v. Facebook Ireland to refer to the Court of Justice of the European Union questions relating to whether there are adequate privacy safeguards when companies like Facebook transfer user data from there to the United States, bearing in mind the ability of the U.S. government to obtain access to that information in some contexts. Gluttons for punishment will listen on only to find themselves subjected, at no additional charge, to commentary on the MLB Playoffs, Steve Rushin's fabulous memoir Sting-Ray Afternoons (a sweet and funny Gen X tale of growing up in the 1970s), and the Monday Night Football/Last Jedi halftime collaboration.