The Week That Was

The Week that Was: All of Lawfare in One Post

By Quinta Jurecic
Saturday, June 27, 2015, 9:21 AM

Monday saw the release of the U.N. Human Rights Council’s Independent Commission of Inquiry report on last summer’s conflict in Gaza. Ben provided us with links to the report and the accompanying press release. He and Yishai followed up with an in-depth analysis of the report, describing it as “bad in almost entirely predictable and boring ways, but no less bad for being bad and predictable.” The report, they write, fails to connect Hamas’s systematic violations of IHL through the use of human shields to Israeli culpability for civilian deaths.

Yishai also noted the Iranian parliament’s vote to ban access for international inspectors to “all military sites, documents, and scientists.” Though the bill could still be rejected by Iran’s Guardian Council, the parliament’s vote potentially represents a significant hiccup in nuclear negotiations.

Wells posted the D.C. Circuit’s decision to deny mandamus relief to Abd al-Rahim al Nashiri, a Guantanamo detainee who petitioned for relief to halt his ongoing trial by military commission. Steve Vladeck found the court’s decision “thoroughly convincing” and provided a run-down of the case’s background, along with a discussion of the ruling’s implications for affirming the D.C. Circuit’s mandamus jurisdiction over military commission cases.

This week’s Lawfare Podcast featured a discussion of another crucial military commissions case, Al Bahlul v. United States. Wells moderated a discussion between Steve and Adam Thurschwell of the Office of the Chief Defense Counsel of the Military Commissions:

In response to the podcast discussion, “long-time sparring partners” Charlie Dunlap and Steve posted an exchange of views on Al Bahlul and the future of military commissions. Charlie took issue with what he saw as unreasonably strong critiques of military commissions in the wake of Al Bahlul. In response, Steve discussed the factors that cause him to be skeptical over the efficacy and justice of commissions in cases like Al Bahlul, listing issues such as the lack of international legal precedent in conspiracy cases and the limitations of the commissions’ institutional structure. Both focused on why (or why not) we should “trust” the commissions, and what it would mean to do so.

The Hoover Institution’s Kori Schake joined the usual Rational Security crowd for this week’s podcast. The discussion featured the U.N. report on Gaza, Shane Harris’s new story on the OPM hack, and the public and legal debate over whether to label the Charleston shooting as domestic terrorism.

Apropos of Charleston, Jane Chong weighed in with a detailed study of both relevant statutes and official statements categorizing domestic terrorism as opposed to hate crimes. Jane’s post suggests that the government’s distinction between acts of terrorism and hate crimes may map to whether the attacker used a bomb (terrorism) or a gun (hate crime)---as opposed to simply categorizing domestic attacks committed by jihadists as terrorism and attacks by white supremacists as hate crimes.

Aaron Y. Zelin of Jihadology linked to translated statements by ISIS and the Taliban, issued this week. He also posted the Jihadology Podcast, featuring a discussion with Charles Lister on the situation in Syria:

This week saw the first-ever Brookings Debate, on the question: Should the United States put boots on the ground to fight ISIS? Michael Doran and Michael O’Hanlon (for) debated Jeremy Shapiro and Senator Chris Murphy (D-CT) (against). Video of the event is available here on Lawfare.

Wells answered the pleas of Lawfare readers for a standalone page breaking down the massive Defense Department Law of War Manual, released last week. Head to Lawfare’s “Special Features” menu to examine the manual in all its 1,204-page glory.

The Supreme Court has been active this week. Though the Court’s recent blockbuster decisions don’t quite touch on “hard national security choices,” Paul highlighted the recent ruling in City of Los Angeles v. Patel. Contrary to Paul’s earlier prediction, the Court affirmed the Ninth Circuit’s ruling that hotel registry information receives Fourth Amendment coverage and that an ordinance allowing police officers to examine the guest registry without a warrant is therefore unconstitutional.

Stewart Baker posted the Steptoe Cyberlaw Podcast, featuring General Counsel for the FBI James Baker:

Paul added to Lawfare’s cyber coverage with Bits and Bytes, while Bobby considered the White House’s veto threat to this fiscal year’s Intelligence Authorization Act. Among other things, the executive objects to the bill’s grant of an expanded purview to the Cyber Threat Intelligence Integration Center (CTIIC).

Bruce Schneier pondered the nature of DOD policy on backdoor security vulnerabilities, comparing recent statements by Admiral James A. Winnefield Jr. of the Joint Chiefs (who seemed firmly against the introduction or use of security vulnerabilities) and Director of the NSA Admiral Michael Rogers (who implied the opposite).

Ben discussed the appropriate distribution of culpability for the OPM hack. Perhaps, he suggested, we shouldn’t place the blame on OPM—which, “after all, is not an intelligence agency or a counterintelligence agency”—but rather at the feet of FBI, NSA, DHS, DNI, or NSC for not coordinating with OPM to secure the agency’s data.

Finally, law professor Mike Lewis passed away this Tuesday. Bobby, Peter Margulies, and Kenneth Anderson all posted their recollections of Mike.

And that was the week that was.