The Week That Was

The Week that Was: All of Lawfare in One Post

By Staley Smith
Saturday, June 20, 2015, 9:30 AM

On Monday, Ben questioned the lack of response from the privacy community following the Chinese government’s cyberattack on the U.S. Office of Personnel Management. The breach enabled China to obtain the most sensitive personal information on millions of Americans, yet there have been few comments from the peanut gallery. Some privacy activists are busy rejoicing over the passage of the USA FREEDOM Act, while others are occupied with condemning current cybersecurity legislation. But don’t blame the Chinese, Ben says. Espionage is a dirty business and it is the responsibility of our government to safeguard sensitive information. Later, Ben posted a video of former NSA and CIA director Michael Hayden echoing this sentiment, stating that if roles had been reversed: "I would not have thought twice. I would not have asked permission. I'd have launched the star fleet. And we'd have brought those suckers home at the speed of light." He went on to say that the devastating hack is no one’s fault but our own, exclaiming it is "a tremendously big deal, and my deepest emotion is embarrassment."

Susan Landau expressed surprise at Ben’s comments, asserting that privacy groups are right to focus on the intelligence agencies’ overcollection and abuse of intelligence on its own citizens. Past instances of the government’s excessive collection and abuse of intelligence are well documented, including the case against Palestinian men living in America, who organized a fundraiser for Palestinian refugees and were subsequently arrested by the FBI for engaging in the financing of terrorist activities. However, Landau concurs with Ben’s comments on the severity of China’s cyberexploit. Chinese-Americans and others closely associated to people in China will be under the most pressure from the Chinese government, and the U.S. government will give increased scrutiny to those with ties to China, making it more difficult for them to obtain security clearances.

Ben then responded to the harsh reactions he received from privacy advocates on Twitter after his post. He rejects the notion that human rights advocacy work should focus exclusively on one’s own government and its policies, particularly because the recent breach by China is a far bigger threat to the very interests privacy groups work to protect than is any surveillance by the American government.

Jack explained the weak and hesitant response to the OPM breach, calling it a “colossal intelligence disaster.” Financial sanctions would not be beneficial, Jack says, and would likely harm us more—on diplomatic and economic fronts—than they would help. John Bellinger reminded us that three years ago Congress passed legislation that would have put sensitive financial information of 28,000 senior executive officials online for the world to see. He encourages Congress to hold hearings on the extent of and responsibility for the breach, and what it can do to mitigate the damage and prevent incidents of the same nature down the road.

In non-OPM news, Charlie Dunlap offered us his thoughts on the cyber chapter of the recently released U.S. Department of Defense Law of War Manual. It contains no paramount legal propositions, he notes, but it organizes clearly and articulates the already-established views of the DoD and U.S. government.

Bruce Schneier reached the verdict that China and Russia almost certainly have Snowden’s entire trove of NSA documents. He links to his article on Wired in which he maintains that at this point, two years after the Snowden bombshell, the self-proclaimed “whistleblower” cannot be blamed for the current targeting of agents and assets, of which the GCHQ is claiming.

In Episode #71 of the Steptoe Cyberlaw Podcast, Stewart Baker interviewed the UK’s David Anderson and both reaffirm the conclusion that Snowden’s collection of documents are in the hands of far more parties than he claims.

Bobby pointed out a little-noticed provision in the National Defense Authorization Act for Fiscal Year 2016, potentially expanding congressional oversight of kill and capture operations carried out by the U.S. military. The change represents the evolving legal architecture for dynamic operations in limited military campaigns. In his first experiment using the Storify platform, Bobby aggregated his posts on the ongoing development of the statutory regime for oversight of kill and capture operations carried out by the U.S. military outside of major combat operations.

Following the momentous D.C. Circuit ruling last week, Zoe Bedell presented us with an overview of the DC Circuit’s Opinion in Al Bahlul v. United States. Peter Margulies disputed the Court’s decision to vacate the military commission conviction of Al Bahlul, arguing that the Court’s interpretation of Congress’s Article I authority over military commissions was too narrow. On the other hand, Steve Vladeck maintained that the majority opinion was correct to rely on a formalist approach rather than the functionalist one. He understood the difference between the majority and dissenting opinions as the difference between the two approaches to the separation of powers and whether Congress can try “domestic” offenses by authorizing non-Article III military commissions.

Wells tipped us off that the Obama administration transferred six detainees from Guantanamo Bay to Oman, reducing the number of remaining inmates to 116. As of President Obama’s first inauguration, there were 242 detainees being held at Guantanamo Bay and Ben presented us with a chart that further illustrates the disposition of Guantanamo cases since day one of the Obama administration.

Meanwhile, Rebecca Ingber weighed in on the legal implications surrounding the U.S. detention of ISIS fighters. In the case of Umm Sayyaf, the recently captured widow of former ISIS commander Abu Sayyaf, U.S. officials admitted that “there was no plan for what to do with her afterwards.”

Jack and Marty Lederman starred in this week’s Lawfare Podcast, as they sat down to discuss the Supreme Court’s opinion declaring the Congress cannot require the State Department to designate “Israel” on the passports of American citizens born in Jerusalem, a decision based on the president’s exclusive power to recognize foreign governments.

Ryan Scoville also provided his insight on the last week’s Supreme Court ruling, noting that while the Court ruled in favor of the Executive branch, it “decline[d] to acknowledge” that the president has “broad, undefined powers over foreign affairs.” The court’s interpretation of Article II, says Ryan, leaves room for the possibility of a constitutional practice of legislative diplomacy.

Bruce Riedel brought us news that Yemen’s Zaydi Shia Houthi rebels are inching closer to the Saudi border, expanding their control on most of the country. Al Qaeda in the Arabian Peninsula (AQAP) still commands Hadhramaut province, while exiled President Abd Rabbu Hadi continues to have grips on parts of Aden, a significant port on the Arabian Sea. Representatives from Hadi’s government, the Houthi fighters, former President Ali Abdullah Saleh's General Peoples' Congress and other opposition groups are in Geneva this week to attend U.N.-led negotiations. However, the Houthis have no incentive to cooperate with President Hadi, despite encouragement to do so from Oman, the United States and Saudi Arabia. A victory for the Houthis, who are backed by Iran, would be a defeat for Saudi Arabia which considers its military campaign against the rebel group a battle to restrain the expansion of Iranian regional influence.

On the topic of Iranian influence, Yishai argued that in the midst of nuclear negotiations, U.S. policy toward Iran cannot be simultaneously generous in exchange for nuclear concessions, and tough in response to Iranian regional aggression. The United States has developed an intricately woven sanction regime against Iran since the Iranian hostage crisis and the Iran-Iraq war. The American sanctions effort that many credit for incentivizing Iran to negotiate has now become the weak spot of the negotiating effort as the administration faces the prospect of untangling a decade’s worth of sanctions that are intertwined with one another.

Tensions are heating up with less than two weeks to go until the June 30 deadline for the Iran nuclear deal. As negotiators work fervently in Vienna on details such as a timeline for lifting sanctions, Yishai shared with us a letter from Senate Foreign Relations Committee chairman Bob Corker sent to President Obama on Monday. Senator Corker concludes his scathing remarks by warning the president that, “Walking away from a bad deal at this point would take courage, but it would be the best thing for the United States, the region and the world.”

This week’s Rational Security Podcast featured Shane Harris as he describes his experience being recruited as a spy by a front group for Iran’s intelligence services. In a story for the Daily Beast, Shane details his email chain with a representative of the “International Congress on 17000 Iranian Terror Victims” organization, inviting him to Tehran for their annual conference, also known as an “anti-West hate fest.”

Yishai and Jennifer Williams updated us on the death of an AQAP leader in an American drone strike as well as unconfirmed reports of the death of notorious Al Qaeda-linked Libyan Mokhtar Belmokhtar in a U.S. airstrike. Additionally, in honor of the Muslim holy month of Ramadan, U.N. Secretary General Ban Ki-moon called for an immediate two-week ceasefire in Yemen. The Israeli government released a report on last summer’s war in Gaza. Also in Israel, the High Court rejected an appeal by the Palestinians to localize construction planning in Area C of the West Bank.

Bobby reviewed the recent attack on Mokhtar Belmokhtar as it relates to the scope of the AUMF. While his current group “Signed in Blood” is not eligible for targeting under the AUMF, his association with Al Qaeda as an individual qualified him for targeting by American manned aircraft.

In this weeks' Foreign Policy Essay, Faysal Itani considered the limits of Islamic State expansion. U.S. efforts to quell the group will not be the major impediments to the Islamic State’s expansionist ambitions, he argues. Rather, Iraq’s Shi’a majority (backed by Iranian militias), together with various brigades and coalitions in Syria who are hostile toward the group, will be the limiting factors for ISIS. Faysal contends that although the Islamic State will endure as a terrorist and insurgent group, its prospects as a state-building project seem unlikely in the current landscape.

In a new feature on Lawfare's Omphalos Middle East site, Aaron Zelin kicked off the Jihadology Podcast series, which will release an episode every two weeks. It will cover new primary source material and analysis from Sunni jihadi organizations as well as conversations with leading experts in jihadi and terrorism studies. The first installment showcased an interview with Jessica Lewis McFate, the research director at the Institute for the Study of War, on the strategy of ISIS in Iraq and Syria and its implications for the security situation locally and geopolitically. It also features primary sources relating to anti-ISIS messages from al Qaeda, Jihadis vs. Hamas in Gaza and spy games. In an "emergency" podcast about the fluid situation amongst Caucasus jihadis in Syria and back at home, Aaron interviewed Joanna Paraszczuk, a journalist for Radio Free Europe/Radio Liberty’s ‘Under the Black Flag’ blog. In it they discuss the Arab coup against Chechen leaders, the position of the insurgency in the Caucasus, and Islamic State ambitions to capitalize on the chaos in the ranks of the Caucasus Emirate.

Alex Whiting delivered a fascinating piece on the limits of the ICC as President of Sudan, Omar al Bashir, “slipped” out of South Africa despite outstanding ICC arrest warrants charging him with genocide, crimes against humanity and war crimes. The ICC will only be as successful as the international community decides to make it, he argues. In the case of Al Bashir, the failure was not one of the Court, but a failure of South Africa, which chose politics over law by being complicit in his escape. While some reason that Al Bashir has immunity from arrest as a president, Whiting rejects the conception.

Cody brought us the news that Second Circuit Court of Appeals has reinstated a claim against former Attorney General John Ashcroft, former FBI Director Robert Mueller, and former INS Commissioner James Zigler, stemming from the post-9/11 abuse, profiling and immigration detention of Muslim and Arab men.

Paul Rosenzweig added his thoughts on a (potentially) significant privacy case, City of Los Angeles v. Patel. The lawsuit was brought by hotel operators who challenge the City of Los Angeles’ rules permitting the inspection of hotel registration records. For “parking meter hotels,” which often host their fair share of individuals engaging in illegal activities, the ordinance allowing police inspections of the registers is not particularly favorable.

Bobby gave us a peek inside his forthcoming book in which he explains the importance of due process in the Magna Carta. In 1215, King John signed the charter promising that, “Neither force nor detention would be used against a ‘free man’ except in accordance with a ‘lawful judgment of his equals or by the law of the land.’”

And that was the week that was.