The Week That Was

The Fortnight That Was: All of Lawfare in One Post

By Matt Gluck
Saturday, May 29, 2021, 9:41 AM

As we mark the one-year anniversary of George Floyd’s killing, Lawfare authors considered the subject of police reform. Jen Patja Howell shared an episode of the Lawfare Podcast, in which Rashawn Ray, professor of sociology at the University of Maryland and David M. Rubenstein fellow in governance studies at the Brookings Institution, joined Lawfare Editor in Chief Benjamin Wittes to speak about the progress of reform-minded federal legislation, states’ advancements in this sphere and what reforms we might hope for over the next year:

Paul Stern proposed a path forward for congressional reform of qualified immunity that would distinguish between civil actions seeking to achieve change on the agency level and those that aim to punish individual officers who perform severe misconduct. Mark Niles contended that the discourse around police reform should be broadened beyond qualified immunity to address what he considers to be the more important issue of applying robust liability to local governments whose police officers violate residents’ civil rights.

Following the Belarusian government’s landing of a commercial plane in Minsk, Howell shared a conversation on the Lawfare Podcast about the skyjacking. Alexander Vindman, the Pritzker military fellow at Lawfare, Alina Polyakova of the Center for European Policy Analysis and Scott Anderson, Lawfare senior editor, spoke with Lawfare Editor in Chief Benjamin Wittes about the order to land the plane, who was responsible for it, the relevant international law and how the U.S. and EU should respond:

Cameron Miles examined the international law at play in the skyjacking.

Howell also shared an episode of Rational Security featuring discussion of the international community’s response to the Belarusian government’s actions, the grand jury in the Trump criminal probe and the possible disclosure of classified information in a U.S. court by a former Saudi intelligence official:

Concerning the conflict between Israel and Hamas, Tamara Cofman Wittes argued that the political crisis and military conflict in Israel and Gaza is a symptom of deep-seated social division and years of inadequate governance. Natan Sachs considered the national and religious symbols underlying the conflict and what they tell us about the future Jewish-Arab dynamic in Israel. After the ceasefire, Tamara Cofman Wittes explained what the U.S. should do to cool tensions between Israel and Palestine and foster productive dialogue moving forward.

Bryce Klehm shared an edition of Lawfare Live, in which Robert Chesney, Lawfare founding editor and James A. Baker III Chair at the University of Texas School of Law, and Trey Herr, director of the Cyber Statecraft Initiative under the Scowcroft Center for Strategy and Security at the Atlantic Council, joined Benjamin Wittes for a conversation about their recent Lawfare piece discussing President Biden's executive order on cybersecurity. Chesney and Herr fielded questions from the Lawfare community:

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Howell also shared a recording of the event on the Lawfare Podcast:

Chesney and Steve Vladeck shared an episode of the National Security Law Podcast, in which they interviewed Eric Goldstein, the executive assistant director for cybersecurity at the Cybersecurity and Infrastructure Security Agency (CISA). They discussed the best parts of Biden’s executive order and what the CISA does to bolster cybersecurity:

Stewart Baker shared an episode of the Cyberlaw Podcast, featuring an interview with Brandon Wales, acting head of the CISA, and Jen Daskal, deputy general counsel for Cyber and Technology at the DHS, on the cybersecurity executive order. The episode also included discussion of the Colonial Pipeline hack and the DHS’s apparent desire for more power to collect information from public posts on social media:

Chesney also discussed the governmental cybersecurity efforts in the United States and United Kingdom, specifically comparing the U.S’s institutional formalism to the U.K.'s flexible structure.

Quinta Jurecic and Benjamin Wittes examined the recent agreement over the testimony of former White House Counsel Don McGahn, what it means for interbranch disputes and who won and lost in the deal. Jonathan Shaub argued that the agreement is a considerable institutional defeat for Congress and that it advances a sweeping view of executive privilege.

Jurecic, Molly Reynolds and Benjamin Wittes discussed the bill that would have created a 9/11-style commission to investigate the attempted insurrection at the Capitol on Jan. 6. The authors discussed the bill's problems and how to fix them.

Howell also shared an episode of Rational Security about the fighting between Israel and Hamas, the proposed Jan. 6 Commission and the decision by the New York Attorney General, Letitia James, to broaden the probe of the Trump Organization to include investigation of criminal activities:

Chuck Rosenberg argued that James should consider recusing herself from the state’s case against the Trump organization because of public comments she made concerning the case before becoming attorney general.

Bob Bauer explained the attack on electoral institutions by Donald Trump and Republican state legislatures and outlined how to combat this dangerous effort. Klehm announced a Lawfare Live event, in which Bauer, Lawfare contributing editor and professor of Practice at New York University School of Law, spoke with Jurecic, Lawfare senior editor, about Bauer’s article and fielded questions from the Lawfare community:

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Seamus Hughes and Rohini Kurup discussed the recent domestic terrorism report issued by the Department of Homeland Security and the FBI. Kurup also shared the report.

Howell also shared an episode of the Lawfare Podcast covering the Endless Frontier Act—legislation aimed at improving U.S. research and development and advancing competitiveness with China. Jordan Schneider, host of the ChinaTalk podcast and analyst with the Rhodium Group, and Molly Reynolds, senior editor at Lawfare, joined Jacob Schulz, Lawfare’s managing editor, to speak about the legislation and its confusing journey in Congress:

Abby Lemer and Eleanor Runde discussed Apple’s compromises with China, the Endless Frontier Act and competition between the U.S. and China in Africa and Latin America.

Schneider shared an episode of ChinaTalk, covering the developments in Congress surrounding the Endless Frontier Act. Schneider spoke about what has happened to the law with Sam Hammond of the Niskanen Center:

Baker also shared an episode of the Cyberlaw Podcast, featuring discussion of Apple’s puzzling submission to Chinese regulations, cryptocurrency in the context of ransomware attacks and an Italian regulator’s hefty fine of Google, among other topics:

Howell also shared a conversation on the Lawfare Podcast about Russian intelligence in the post-Cold War era, in which Lawfare’s chief operating officer David Priess spoke with Jack Devine, who worked at the CIA for approximately 30 years, about countering threats from Russia and what role U.S. intelligence can play in this effort:

Howell also shared an episode of the Lawfare Podcast about Maria Butina, the former unregistered Russian foreign agent who was arrested after news broke of the Russian electoral interference scandal. Lawfare’s editor in chief Benjamin Wittes spoke with director and producer Celia Aniskovich—who produced the Spy Affair podcast about the FBI investigation of Butina—and former FBI agent Peter Strzok about who Butina really is, what motivated her activities in the U.S. and where she fits into Russia’s efforts to influence the 2016 election:

Mariana Budjeryn argued that it would be unwise for Ukraine to violate the Budapest Memorandum and pursue nuclear capabilities, but that the West must uphold its end of the agreement and support Ukraine against Russian attempts to undermine its sovereignty.

Eric Halliday and Rachael Hanna discussed the law surrounding the No-Fly List, what the list does for the government, how people can get off the list and whether domestic extremists might be added to it.

Howell also shared the final episode of Lawfare’s “After Trump” podcast series. This edition explored the ongoing post-Trump reform efforts and what should be done to ensure effective and lasting institutional change:

Kellen Dwyer argued that in order to fight ransomware attacks more effectively, the Justice Department should focus on conducting substantial proactive investigations into cybercrime. Nicholas Weaver contended that the real problem with ransomware attacks is Bitcoin.

Schneider also shared an episode of ChinaTalk in which Schneider and co-host Danny Crichton of TechCrunch interviewed Odd Arne Westad about his new book on Sino-Korean relations, "Empire and Righteous Nation: 600 Years of China-Korea Relations." They discussed how South Korea has approached its relationship with nearby powerful nations:

Schneider also shared an edition of the ChinaTalk podcast in which he and co-host Ainikki Riikonen, research assistant at the Center for New American Security, spoke with Dr. Sungmin Cho of the Asia-Pacific Center for Security Studies about Beijing’s view of the Korean Peninsula:

Alvaro Marañon explained the impact of information operations on recent elections in Latin America and how they might affect the upcoming elections in the region.

Darrell West shared the next edition of TechTank, featuring West’s conversation with Jurecic, senior editor at Lawfare, about the Facebook Oversight Board’s decision concerning former President Trump’s account and the mode of governance the board represents:

Howell also shared the latest edition of Lawfare’s Arbiters of Truth Series, in which David Kaye, former U.N. Special Rapporteur on freedom of expression, joined Jurecic, Lawfare senior editor, and Evelyn Douek, lecturer at Harvard Law School. They spoke about the involvement of international human rights law in content moderation and the global ascent of digital authoritarianism:

Haroro Ingram and Lorenzo Vidino discussed the Islamic State's new affiliate in the Democratic Republic of the Congo and proposed that scholars and policymakers should acknowledge this threat and work to understand it.

Howell also shared an episode of Lawfare Podcast about the lead up to the U.S. invasion of Iraq. Senior Editor Scott Anderson spoke with Noreen Malone, host of Slate’s Slow Burn podcast, about Slow Burn’s fifth season—which examines the period preceding the U.S. invasion—and what we can learn from that era about our current moment:

Hayley Evans discussed the U.K.’s labeling of the neo-Nazi group Atomwaffen Division as a terrorist organization, the move's intended effect in the international community and what it doesn’t do operationally.

Thomas Kellogg and Eric Yan-ho Lai discussed the worrisome due process precedent set by the Hong Kong High Court’s decision that Tong Ying-kit is not entitled to a jury trial in the case concerning his alleged violation of Hong Kong’s National Security Law.

George Croner argued that the Foreign Intelligence Surveillance Court is doing its job with regard to its oversight of the Foreign Intelligence Surveillance Act Section 702 program.

Chesney and Vladeck also shared an episode of the National Security Law Podcast, covering a recent Guantanamo Bay military commission ruling, the sentence-reduction deal in the case of Guantanamo detainee Majid Khan and the conflict between Israel and Hamas:

Adam Chan explained the primary issues in the Al-Hela case—concerning a Guantanamo Bay detainee’s claim of habeas corpus relief.

Howell also shared an episode of Lawfare’s "Arbiters of Truth" series, featuring discussion of the Christchurch Call—an initiative established by New Zealand and France following the Christchurch shooting “to eliminate terrorist and violent extremist content online.” Jurecic and Evelyn Douek spoke with Dia Kayyali, a co-chair of the Advisory Network to the Christchurch Call, about representing civil society in conversations concerning the call, the Biden administration’s decision to sign the U.S. onto the call and the potential problems of excessive content moderation when targeting “terrorist” content:

Inga Kristina Trauthig and Marcel Dirsus considered who might replace German Chancellor Angela Merkel and contended that the shift in leadership is unlikely to bring about change in the country’s foreign policy.

Anderson announced that Lawfare is accepting applications for a new position at Lawfare and the Brookings Institution: Lawfare senior editor and Brookings cybersecurity fellow. Klehm and Kurup announced that Lawfare is accepting fall internship applications.

Cornell Overfield reviewed the new book, “The Arctic and World Order,” edited by Kristina Spohr and Daniel Hamilton and co-edited by Jason Moyer.

Klehm also shared the 2019 Justice Department memo released this week advising then-Attorney General William Barr on how to address former President Trump’s possible obstruction of justice violations detailed in the Mueller report.

Susan Landau considered how contact tracing apps worked during the pandemic and how they should be used moving forward.

And Pam Dixon and Robert Gellman considered some important features of a new law that seeks to modernize the outdated Privacy Act of 1974.

And that was the fortnight that was.