The Week That Was

The Week That Was: All of Lawfare In One Post

By Raffaela Wakeman
Saturday, October 5, 2013, 10:00 AM

It was a prolific week for Lawfare.

This week we launched a new project with The New Republic, called Security States. It is designed to bring Lawfare writers to New Republic readers:

As Washington braced itself for the government shutdown, John wondered aloud (or rather, in written form) whether those ideologically extreme Republicans have forgotten about September 11 and the threats the United States still faces. The Washington Post quoted his piece at length in an editorial this week.

I previewed, and Wells and I recapped, this week's en banc oral arguments in Al-Bahlul v. United States. Steve laid out his predictions. Professor of Law at Loyola Law School David Glazier provided his thoughts about the arguments in a guest post, focusing in particular on the government's interpretation of history in arguing that the D.C. Circuit affirm Al-Bahlul's military commission conviction.

We learned of the extradition to the United States of Nizar Trabelsi, a Tunisian convicted for terrorist charges, and indicted here in the States for plotting to drive a car bomb into the canteen at the NATO/U.S. Air Force Base Kleine-Brogel in Belgium.

John tagged the decision in the Eastern District of New York's to dismiss a suit brought against two former heads of the Pakistani intelligence agency on the basis of the U.S. government's suggestion of immunity.

Ben shared a guest post by Mark Klamberg, of Sweden's Uppsala University Department of Law. Klamberg compares European laws governing metadata collection with those in the U.S.

A very important new piece of research came out, as our latest installment of the Lawfare Research Paper Series over the weekend: by David Kris, former head of the National Security Division, and entitled "On the Bulk Collection of Tangible Things." Ben flagged Orin Kerr's reaction over at Volokh Conspiracy.

Our latest podcast episode features two Lawfare-ers, Ben and Steve, along with Orin Kerr of George Washington University, debating NSA surveillance.

Despite the government shutdown, Congress's doors were open, in particular to discuss the NSA surveillance programs: the Senate Judiciary Committee held a hearing, featuring the usual suspects (NSA Director Keith Alexander and DNI James Clapper), frequent Lawfare scribe and Georgetown Law Professor Carrie Cordero, Georgetown Law Professor Laura Donohue, and Princeton's Edward Felton.

Ben's webcast at West LegalEdCenter about the NSA disclosures is now available (you can even get CLE credit by watching it).

The shutdown prompted a statement by Senate Select Committee on Intelligence Chairwoman Dianne Feinstein. You can guess what the focus of her floor remarks was.

Jack flagged two different comments in the media along the popular theme of security versus transparency in the U.S. intelligence world.

It seems that some federal agencies prepared particularly well for the shutdown: Paul sends his thanks to the Department of State, which expedited his expedited request for a new passport before shutting down.

Another important, FISA-related development on Lawfare this week: a wiki page documenting the leaks and declassifications, collected by our Lawfare intern Nick, made its way to the web.

Jack noted a major New York Times story assessing the damage to U.S. intelligence capabilities a McClatchy story leaking an extremely valuable source of Al Qaeda intelligence in August may have caused.

Matt Danzer, our newest student contributor, previewed and recapped this week's oral arguments in the Second Circuit FOIA appeal related to the president's targeted killing program. A letter from the Court in that case caught Jack's attention: it seemed to voice skepticism with regards to the U.S. government claims about the executive branch materials the Times and the ACLU were seeking.

Paul highlighted the recent assassination of the head of Iran's cyber warfare program as a reminder that "bullets still beat 1s and 0s in many contexts."

John explained what makes a United Nations Security Council resolution "binding," and takes a look at that chamber's draft resolution regarding Syria.

Lawfare-ers continue to flag the vacancies around the government in key national security positions: this week, it's Paul on the open positions in their cybersecurity office.

I wrote about a long-running habeas appeal before the D.C. Circuit: Ali v. Obama. A three-judge panel held oral arguments in the case last week.

A Guantanamo detainee has succeeded in receiving a writ of habeas corpus, as the Department of Justice filed a response indicating that it doesn't oppose the District Court issuing a writ in the case of Idris v. Obama, which Judge Lamberth promptly did.

I am adding this interesting-looking article (h/t to Paul for noting) to my reading list: "The Case for Canamerica" in Foreign Policy.

And here's your monthly dose of Lawfare reader statistics: in comparison to our August statistics, viewership is up more than twofold in Iran, but halved in Cuba, up by 30 percent from Russia, and up from a single visit to 19 from Syria. Nearly 60 percent of our visits this month came from new visitors.

And that was the week that was.