The Week That Was

The Fortnight That Was: All of Lawfare in One Post

By Matt Gluck, Tia Sewell
Monday, January 4, 2021, 2:56 PM

After the winter holidays, Lawfare is entering 2021 with an overview of the past two weeks on the site. The end of the year is often a sleepy time, but there was no shortage of activity in the last weeks of 2020.

Benjamin Wittes reflected on how Lawfare has adapted to the unique challenges and demands of 2020 and asked readers to include Lawfare in their end-of-year giving.

Jen Patja Howell shared an episode of Rational Security reflecting on 2020’s big national security stories and what to watch for in 2021:

Howell shared the annual edition of the Ask Us Anything Lawfare Podcast, in which Lawfare contributors answered questions from Lawfare readers:

And Howell shared 2020’s last episode of the Lawfare Podcast, featuring a recap of the year’s events with commentary from Lawfare’s Susan Hennessey, Quinta Jurecic, Scott Anderson and Alan Rozenshtein:

Lawfare contributors also examined President Trump’s recent spate of pardons and commutations. Jack Goldsmith and Matt Gluck analyzed how many of President Trump’s 94 pardons and commutations were recommended by the Justice Department’s pardon attorney. Margaret Colgate Love proposed reforms to the pardon process that offer alternative avenues to granting clemency other than presidential intervention, potentially allowing the president to use the pardon authority more effectively to address flaws in the criminal justice system.

Howell shared an episode of the Lawfare Podcast featuring an interview with Lawfare’s Alexander Vindman and Dr. Geoffrey Gresh to discuss Gresh’s new book, “To Rule Eurasia’s Waves: The New Great Power Competition at Sea”:

Howell also shared an episode of the Lawfare Podcast featuring Jacob Schulz’s interviews with Emmanuel Igunza, a reporter in East Africa for BBC News, and Beza Tesfaye, director of research and learning for migration at Mercy Corps, about the ongoing humanitarian crisis in Ethiopia:

Lester Munson shared an episode of Fault Lines featuring an interview with Megan Jaffer, a founding member of the Amazing Women of the Intelligence Community and host of the Iron Butterfly Podcast, on what lessons can be taken away from the stories of senior women in the Intelligence Community, among other topics:

Munson also shared an episode of Fault Lines on the U.S. defense industrial base and how China’s economic threat influences the approach to its military threat:

Also on China, Eleanor Runde and Abby Lemert dissected U.S.-China technology policy and national security news, including China’s recent sanctions on Big Tech, in the latest edition of SinoTech. Sam Cohen analyzed military activity and tensions in the South China Sea throughout the month of December in the latest edition of Water Wars. And Jordan Schneider shared an episode of ChinaTalk discussing U.S.-China tech competition with Michael Brown, who heads the Defense Innovation Unit:

Schneider also shared an episode of ChinaTalk covering Chinese propaganda and the role of bicycles in Chinese society, among other things:

And in another episode, Schneider discussed Chinese rap hits of 2020:

On the other side of the world, Tal Mimran and Yuval Shany analyzed Israeli responses to a series of cyberattacks and argued that Israel seems to be increasingly turning to international law to guide its retaliations to malicious cyber activity.Yasmina Abouzzohour discussed Morocco’s partial normalization of relations with Israel and the move’s implications for the future. 

Bennett Clifford, Seamus Hughes and Alexander Meleagrou-Hitchens argued that countering violent extremism (CVE) programs in the U.S. have so far been ineffective. They found that the future of terrorism prevention initiatives will increasingly be dettermined by state-level and city, rather than federal, efforts.

Rohini Kurup shared a criminal complaint charging a former Libyan intelligence officer with helping to make the bomb used in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, that killed 270 people.

Bobby Chesney and Steve Vladeck shared an episode of the National Security Law Podcast featuring discussion on various national security stories, including Erica Newland’s op-ed arguing that Justice Department attorneys should have resigned early on in the Trump administration and the recent news of Al-Shabaab’s 9/11-style terrorist plot, among other things:

The Russian hack of SolarWinds software slipped under the wire as one of the major cyber stories of 2020. Herb Lin discussed the SolarWinds hack and what the U.S. should learn from it. Richard J. Harknett argued that the hack should prompt the U.S. to accelerate its shift to the doctrine of persistent engagement in cyberspace.

Also writing on cyber issues, Jim Demsey contended that the new Internet of Things Security Act does not change much and demonstrates the limited influence that legislative action can have on cybersecurity. And Justin Sherman proposed three guiding considerations for tackling the security risks of foreign-made software and discussed how the Trump administration may have applied that guidance in determining the U.S. approach to TikTok.

In the third paper in Lawfare’s Digital Social Contract paper series, Jane Bambauer and Bryan Ray analyzed why the U.S. failed to use communications technology to slow the spread of the coronavirus. The authors also outlined the lessons we should learn to improve the use of apps to combat a similar public health crisis in the future. Howell shared an episode of the Lawfare Podcast featuring an interview with Bambauer and Ray on their paper:

Alan Charles Raul explained how the Court of Justice of the European Union’s Schrems II opinion might not be a problem for EU-U.S. data transfers, arguing that the court's concerns were not applicable to the overwhelming bulk of cross-border data transfers. 

Howell also shared a discussion on the Lawfare Podcast about Britain’s signals intelligence (SIGINT) conduct and regulations. David Kris spoke with Michael Drury and Tony Comer, who both previously served in the Government Communications Headquarters—Britain’s counterpart to the National Security Agency. The conversation covered the current state of SIGINT and the similarities and differences between U.S. and UK SIGINT operations:

In early December, President-elect Joe Biden nominated retired Gen. Lloyd Austin as secretary of defense. Soren Dayton and Christine Kwon argued that to maintain civilian control of the military, Congress should not grant Austin a waiver to serve as secretary of defense—or, at the very least, it shouldreform the waiver process. Dan Maurer suggested that when considering Biden’s controversial nomination of Gen. Lloyd Austin for defense secretary, the Senate should consider Austin on his merits rather than through categorical assumptions about civil-military relations. 

Rohini Kurup shared a report published by the U.S. Air Force inspector general that details racial disparities in the military’s treatment of service members.

Bob Bauer argued that White House Counsel Pat Cipollone should either publicly criticize President Trump’s outlandish efforts to overturn the election or resign from his position. Howell shared an episode of the Lawfare Podcast featuring an interview with Bob Bauer, former White House counsel and Biden transition official, on President Trump’s unprecedented efforts to overturn a democratic election: 

Klehm also shared two Office of Legal Counsel opinions regarding President Trump’s withdrawal from the North American Free Trade Agreement (NAFTA) and the Open Skies Treaty.  

Kurup shared a ruling by the U.S. Court of Appeals for the D.C. Circuit affirms legislators’ ability to request courts’ assistance to enforce the seven-member rule—a law that allows any seven members of the House Committee on Oversight and Reform to force the executive branch to release material related to the committee’s mandate. 

Paul Stern contended that lawmakers seeking accountability for law enforcement officers through constitutional tort law must meaningfully address remedies law. 

Paul Rosenzweig shared a video offering thanks to those who serve the country.

And Bryce Klehm shared a Lawfare Live event featuring a discussion about Trump’s clemency grants and the president’s pardon authority more broadly. Benjamin Wittes, Lawfare editor-in-chief and co-founder, and Jack Goldsmith, Lawfare co-founder and Learned Hand Professor  of Law at Harvard Law School, joined David Priess, chief operating officer at Lawfare, to answer questions from the Lawfare community on pardons:

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And that was the fortnight that was.