The Week That Was

The Week that Was: All of Lawfare in One Post

By Tara Hofbauer
Saturday, June 6, 2015, 9:30 AM

On Tuesday, the USA Freedom Act passed the Senate, was signed by the President, and became law. However, the enactment came almost two full days after key provisions of the USA Patriot Act had expired---the result, as some here at Lawfare termed it, of “dangerous brinksmanship” on the part of the Senate. On Ben's "Dishonor Roll" for his involvement in the process? Senator Rand Paul (R-KY).

On Saturday, before the Patriot Act’s section 215 expired, Tim Edgar explained why letting it lapse would not necessarily mean the end of the NSA’s bulk telephony metadata collection program.

Then, on Monday, as the upper chamber of Congress took up the USA Freedom Act, Ben shared an internal Senate Republican staff memo describing the different amendments to be proposed to the bill. Steve Vladeck examined one of the amendments outlined. None of them ultimately passed.

Jodie Liu explained some the key provisions of the USA Freedom Act as finally passed.

In response to the whole saga, Senator Sheldon Whitehouse (D-RI) tried to make sense of why Americans are so comfortable with large corporations gathering their personal data, but so hostile to the idea of the U.S. government doing so. He noted that we have to start “pushing back” against that idea, remembering the original meaning of Ben Franklin's famous saying (as unearthed a few years back here on Lawfare), “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

Bobby considered FISA surveillance in the “lone wolf” scenario, explaining what a new FISC interpretation of the term “agency” would mean under the USA Freedom Act.

Meanwhile, on Thursday, the New York Times shared news regarding a supposed expansion of the NSA’s warrantless surveillance program. Ben took the paper to task, explaining that the situation looks “very nothing-burger indeed.” Charlie Savage, the lead author on the Times story, responded to Ben’s criticism, saying, “Your snark depends upon a straw man and a distortion.” Meow! More to come, apparently.

Moving to the international front: Yishai Schwartz considered International Atomic Energy Agency (IAEA) access to Iranian military bases---a topic that has become a sticking point during P5+1 nuclear negotiations with Tehran.

For this week’s Throwback Thursday, Cody discussed the historic legal battle between India and Bangladesh over border enclaves.

The Foreign Policy Essay this week examined the effectiveness of the U.S. drone program. Author Rachel Stohl, who directed the Stimson Center’s Task Force on U.S. Drone Policy, argued that injecting “transparency, accountability, and oversight” into the program “will engender greater confidence, …set a positive precedent, and develop norms and strategies for the future.”

Paul informed us of a Reuters report regarding a failed U.S. attempt to install a Stuxnet-like virus in the North Korean nuclear weapons system, and considered questions that this incident raises.

Ashley Deeks described this past week’s NATO Cyber Conflict conference in Tallinn, Estonia, examining China’s perspective on the update of the Tallinn Manual.

In this week’s Bits and Bytes, Paul brought us news about Russia, China, and the FBI.

Herb Lin informed us of a data breach at the U.S. Office of Personnel Management. He noted that the government is offering credit monitoring and identity theft insurance to impacted civil servants, but explained that “treating this matter merely as a financial risk for affected employees misses the boat.” He asks, “What, if anything, will the U.S. government do to sensitize the affected employees about following basic cybersecurity and cyber hygiene measures in the wake of this incident?”

Stewart Baker posted the Steptoe Cyberlaw Podcast. This week’s guest was Jason Brown, the Assistant to the Special Agent in Charge of the Cyber Intelligence Section at the U.S. Secret Service:

Ben shared the Lawfare Podcast, which featured former general counsel to the director of national intelligence Benjamin Powell interviewing current FBI Director James Comey:

Cody and Sebastian Brady considered whether and to what extent the military prison at Guantanamo Bay is used as a recruiting strategy for militant organizations, such as al-Qaeda and the Islamic State. The analysis was timely – Wells shared news on Thursday that the Obama administration seeks to transfer up to ten detainees from the facility this month.

Ben shared PBS’ new Frontline documentary on President Obama at war. He also shared the latest episode of Rational Security:

Susan Landau announced the launch of the new Journal of Cybersecurity, “an interdisciplinary journal encouraging submissions in all aspects of cybersecurity.”

And speaking of new, the Lawfare team is delighted to announce the redesign of our site. This milestone has involved help, input, and support from a variety of sources, and we believe you will be pleased with the end result. Ben shared some details about the new site. Look out for it on Monday.