The world was consumed with the debt ceiling crisis and the shutdown this week, a topic on which Lawfare had only a limited amount to say. Ben stated the obvious: that the government shutdown is a national security threat; and Sean wrote on the effects of President Obama's decision not to attend summits in Asia and in the Pacific. I, meanwhile, recorded a podcast with the Brookings expert with whom I spend my non-Lawfare my time at Brookings working, congressional scholar Tom Mann, and his long-time collaborator Norm Ornstein. Recorded the day before Congress ended the government shutdown, the podcast focuses on their book, It's Even Worse Than It Looks, and the implications of congressional dysfunction for national security.
This got in under the radar while we were all watching the House vote on the government shutdown-ending bill: the Senate's approval, presumedly by voice vote, of several national security-related positions, including the new DoD General Counsel, Stephen Preston.
Jack wrote a reaction piece to a Marty Lederman/Mary DeRosa post at Just Security about the significance of the two special operations forces raids in Africa. And Wells shared the news that the big fish netted in one of those raids, Abu Anas Al-Libi, was transferred from the U.S.S. San Antonio to the Southern District of New York.
This week's Security States posts, available at New Republic:
- Matt Waxman: We Need to Regulate Surveillance in Our Cities Before It's Too Late
- Paul Rozensweig: When Companies Are Hacked, Customers Bear the Brunt. But Not for Long
- Jane Chong: The Government Thinks It's Legal to Access Your Emails. This Theory Explains Why
- Steve Vladeck: Unlawfully Detained by the U.S. Government? Don't Bother Suing
- Ken Anderson and Matt Waxman: Don't Ban Armed Robots in the U.S.
A bunch of NSA surveillance news this week: Paul wrote on the reaction of internet governance entities ICANN and W3C; Ben wondered why on earth the Washington Post would leak details of an NSA program that collects email address books, lawfully collected through Executive Order 12333. Along those same lines, Paul noted a mea culpa by the New York Times public editor Byrome Calame concluding he was "off base" in supporting the decision to publish the details of the SWIFT program back during the Bush administration.
Since we're talking surveillance programs, let's mention Foreign Intelligence Surveillance Court news. First, the Chief Judge of the FISC, Judge Reggie Walton sent a letter to U.S. Senator Chuck Grassley with more detailed statistics on the orders issued by his court: 24.4 percent of the submissions made to the FISC received "substantial" changes prior to FISC judges granting the surveillance request---a figure significantly higher than any comparable number under Title III. Joel Brenner wrote a guest post about this letter, to which Steve responded, and Joel wrote again, too.
Also in FISC-related transparency news: the FISC declassified as much as it could of its latest business records telephony metadata program; I wrote about two issues dealt with in that order: Judge Claire Eagan's "relevance" analysis in her August memorandum, and addressing Supreme Court Justices opinions in United States v. Jones, the GPS-tracking case.
The Obama administration announced its choice for the long-empty post of Secretary of Homeland Security. Jeh Johnson, former general counsel of the Department of Defense, will require the go-ahead from the world's greatest deliberative body, before he begins leading the department. A old-ish Lawfare post related to this personnel decision that's received a lot of hits this week: Mr. Johnson's November, 2012 speech at the Oxford Union.
Lavabit filed its brief in its Fourth Circuit, regarding its challenge to the U.S. government's mandate for the SSL key to provide access to the secure email of Edward Snowden and, it alleges, many others; Paul shared that document.
More news from the Fourth Circuit: it decided against granting a rehearing en banc to reporter James Risen from a three-judge panel's decision to force the reporter to testify in the leak prosecution of former CIA employee Jeffrey Sterling.
For those seeking a break from all things NSA and government shutdown: read John's historical overview of the imprisonment of the former president of Liberia, Charles Taylor, convicted of war crimes.
Ken noted two forthcoming articles by Ashley Deeks: first, an article entitled "The Observer Effect: National Security Litigation, Policy Change, and Judicial Deference; second, a piece called “Domestic Humanitarian Law: Developing the Law of War in Domestic Courts.”
Here's a useful resource, which Paul shared, for those searching for a list of sources related to cyber matters from the George Washington University. And don't forget to sign-up for the Annual Review of the Field of National Security, here in Washington, D.C. later in October.
This Foreign Policy story, providing the background to the publication of a recent Lawfare Research Paper Series paper by Steven Bradbury about NSA surveillance programs, caused a bit of a flap. Ben's response is here.
For fans of the Lawfare Podcast: we released two new episodes in the last week. I already linked to the interview with Tom Mann and Norm Ornstein. The other was a Brookings book event about Matt Apuzzo's latest writing: Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America.
In other podcast-related news, Wells recalled a previously-posted Lawfare podcast, with the U.N. Special Rapporteur Ben Emmerson, on the occasion of his latest report on counterterrorism operations.
And that was the week that was.