The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, May 16, 2015, 9:55 AM

Last week, the Second Circuit Court of Appeals ruled in ACLU v. Clapper that the NSA’s bulk collection of telephony metadata went beyond the powers granted by Section 215 of the Patriot Act. As you might expect, the news made a few waves in the Lawfare community.

Ben noted that, despite surface appearances, the decision is actually a good thing for the NSA. By raising questions about the viability of Senator Mitch McConnell’s (R-KY) clean reauthorization legislation (and Sen. McConnell’s subsequent short-term reauthorization, which Cody told us about), the decision effectively narrows the range of possible paths forward, thereby making a Section 215 expiration less likely. Ben later added some thoughts on how a decision by the D.C. Circuit in Klayman v. Obama might affect the debate over reauthorization.

Last week Orin Kerr linked us to his analysis of the 2nd Circuit’s decision, and noted that the ruling’s peripheral meditation on “reasonableness” and the 4th Amendment seemed rather odd. Yishai responded by pointing out that, under a different and perhaps more germane reading of “reasonableness,” the Court’s digression actually makes some sense.

Peter Margulies also took aim at the 2nd Circuit decision, arguing that the ruling doesn’t properly consider the government’s use restrictions on the metadata it collects. This failure, Peter wrote, “makes Clapper a flawed decision.”

After the ruling came down, some senators took to the Senate floor to pronounce their support for the Section 215 bulk collection program. However, Harley Geiger pointed out that some of the claims they made in support of the program aren’t quite up to snuff. Whatever their merits, the senators’ songs of praise for Section 215 fell on deaf ears in the House, where lawmakers passed the USA Freedom Act on Wednesday by a whopping 338-88 margin, as Wells informed us.

That vote seems to indicate that if Congress passes any bill before the 215 sunset, it’s going to be the USA Freedom Act. So Ben and Jodie Liu teamed up to break down the provisions of USA Freedom, or, as we refer to it here at Lawfare, the “Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring Act of 2015.” As it turns out, the bill differs in important respects from the USA Freedom Act that was nearly passed last year, and includes some provisions that seem to have nothing to do with the NSA whatsoever.

Of course, there are those who support some of the transparency requirements of the USA Freedom Act but feel the bill restricts the government’s surveillance authority too much. For these people, Carrie Cordero provided an alternative way forward, which would include authorizing the Section 215 program as it currently exists while absorbing some choice reforms from USA Freedom.

All of this action is a lot to process, so Ben helpfully provided links to a few radio shows that featured some dialogue on the issues at play here, as did the newest edition of the Rational Security Podcast.

Ben also pointed us to a new post by Russell Wheeler at the Brookings FixGov blog in which Wheeler updates his Lawfare Research Paper from last year on the changing composition of the Foreign Intelligence Surveillance Court.

Kenneth Anderson brought us an especially timely new installation of the Lawfare Research Paper Series: An Essay on Domestic Surveillance, by Philip B. Heymann. Among other things, the paper deals with the 4th Amendment issues that the 2nd Circuit’s decision dealt with only incidentally, specifically in the context of new surveillance technologies.

Section 215 is of course not the only legal authority for government surveillance and intelligence operations. Wells shared video from Wednesday’s public meeting of the Privacy and Civil Liberties Oversight Board on counterterrorism activities conducted under another one of those authorities, Executive Order 12333. Tim Edgar, who appeared before the Board during the meeting, gave us a primer on the ongoing relevance of EO 12333, both for government lawyers and for the international community.

Staying on the topic of surveillance, Joel Brenner posted the introduction to the speech that he gave Friday morning at the NSA to mark the 40th anniversary of the Church and Pike hearings.

And staying on topic of speeches, Jack posted the text of the address he gave at the Office of the Director of National Intelligence last week, entitled Toward Greater Transparency of National Security Legal Work.

In this week’s Foreign Policy Essay, Joshua Rovner described the pressures that intelligence agents sometimes face to water down or otherwise hedge their assessments, and the danger that this “soft politicization” of intelligence poses in the context of an Iranian nuclear deal.

In response to Seymour Hersh’s widely-maligned exposé on an alleged massive cover-up of the details of Osama bin Laden’s capture and death, Yishai took Hersh to task for committing “journalistic malpractice.” Publishing a story than can potentially inflame anti-American sentiment abroad and harm U.S. relations with foreign governments is a tricky proposition even when the story is strongly sourced. When such a story rests, as Hersh’s does, on “obscenely thin sourcing and careens into conspiracy theories,” Yishai argued, “the decision to publish becomes indefensible.”

Jack told us that 20 former senior CIA officials, including every CIA Director since 1987, wrote a letter to the New York Times rebuking Executive Editor Dean Baquet for his defense of the decision to publish the names of three covert CIA operatives in a Times article last month. The crux of their argument is that covert CIA operatives do not escape accountability, and so publicly outing them gains nothing and harms their ability to, “when called upon, … operate in secret to protect the country.”

Jack addressed these officials’ arguments in a later post, writing that he finds them generally unpersuasive. However, he takes care to point out that the fact that these arguments are unpersuasive does not in turn mean that the Times was right to publish the names.

Gabriel Kohan provided some thoughts on the Obama administration’s decisions to suspend military aid to Egypt in 2013 and to then reinstate it this March.

Ben told us about an interesting proposal for dealing with two seemingly disconnected crises put forth in a Times op-ed this week: settle Syrian refugees in Detroit. Alan Rozenshtein reviewed both Shane Harris’s book @War: The Rise of the Military-Internet Complex and Marco Roscini’s book, Cyber Operations and the Use of Force in International Law.

Ingrid Weurth and Ganesh Sitaraman pointed us to their new article in the Harvard Law Review, “The Normalization of Foreign Relations Law.” In the article, Ingrid and Ganesh argue that, although many scholars agree that a kind of exceptionalism has thus far defined foreign relations law, the Supreme Court “has increasingly rejected the idea that foreign affairs are different from domestic affairs.”

I linked to “Treatment of Foreign Fighters in Selected Jurisdictions,” a recently updated report by the Global Legal Research Center at the Law Library of Congress. The report describes the various legal regimes put in place or under consideration in the United Nations, the European Union, and 73 countries to deal with the threat of foreign terrorist fighters.

Kenneth Anderson reviewed Deadly Metal Rain: The Legality of Flechette Weapons in International Law by Eitan Barak. The book uses the history of flechettes---“an antipersonnel weapon consisting of many small, solid metal projectiles with fins”---as a launching pad from which to elucidate some of the issues surrounding the regulation of weapons and their use.

Yishai Schwartz and Jennifer Williams rounded up the latest Middle East news for us in the Middle East Ticker.

Ben tipped us off that Lawfare friend and contributing editor Matthew Waxman has been designated as the NSA’s new General Counsel. The Lawfare team congratulates Matt on his selection and wishes him the best of luck in his new role.

Last week, Lawfare held its first live event, the Triple Entente Beer Summit at the Washington Firehouse. The event was a hit with audience members and panelists alike, and audio from the live podcast---which featured Ben, Shane Harris, Tamara Cofman Wittes, Stewart Baker, and Michael Vatis talking about (what else) the 2nd Circuit ruling---served as new episodes of the Lawfare Podcast, the Rational Security podcast, and the Steptoe Cyberlaw Podcast. Check it out if you missed the event, or if you just want to relive the memories.

And that was the week that was.