The Week That Was

The Week That Was: All of Lawfare in One Post

By Staley Smith
Saturday, July 18, 2015, 10:00 AM

Dominating the news, and Lawfare's coverage: Iran. Four deadlines and 18 days of final discussions later, the United States reached a historic accord with Iran to limit Tehran’s nuclear capabilities in return for lifting international oil and financial sanctions. Wells presented the full text of the Joint Comprehensive Plan of Action (otherwise known as the Deal). The agreement culminates 20 months of negotiations on a crisis that began more than a dozen years ago and will likely be the biggest diplomatic achievement of President Obama’s presidency. Yishai, Quinta Jurecic and Staley Smith offered a comprehensive breakdown of the very long and dense document that Congress will have 60 days to review once the agreement is formally submitted to Capitol Hill.

Jack let us know that we can thank the Iran Nuclear Agreement Review Act for the upcoming debate about the Iran Deal: if not for the statute, President Obama could have lifted U.S. sanctions under waivers and related provisions that Congress given him earlier. The Iran Review Act, Jack told us, disabled the President from lifting those sanctions for a period—60 days from when Congress receives the official documents—so that Congress can review the Deal and decide to approve it, oppose it, or do nothing.

Separately, Jack argued that the politics of the Iran Review Act are good on balance. The latter achieves three political upsides: it creates the possibility that Congress will reject the deal with veto-proof super-majorities; it sparks a more focused and robust debate about the merits and demerits of the Iran Deal than would have happened in its absence; and it will continue to have consequences long after President Obama has passed from the scene, but when many current members of Congress are still on the scene---which in turn will ensure proper accountability for the consequences of the Deal.

Suzanne Maloney warned that although the negotiating process itself has ended, the factors that undermine Iran’s relationship with the world have not. Tehran's strategy of extending its regional influence, via the funding and direction of violent proxies across the region, will continue to exacerbate instability in the region and beyond while fueling rivalry with Saudi Arabia. Suzanne went on to say that the agreement should cease a few of the most enduring assumptions about U.S. policy, such as the taboo against direct diplomacy between the estranged governments of the Washington and Tehran. The Deal also contradicts the premise that Iran is invulnerable to pressure, a point of profound nationalistic pride among Iranians. Finally, Suzanne discussed the role of Iranian president Hassan Rouhani in securing the Deal while sustaining a mostly harmonious partnership with Khamenei. One of the primary lessons here, according to Suzanne, is the evidence of the power of the Iranian presidency to influence central policy outcomes.

Shadi Hamid expressed some misgivins, writing that “he can’t help feeling that we’ve paid a tremendous cost for what can only be described as a narrow – if understandable – focus on the minutia of Iran’s nuclear program, including extremely technical questions about, for example, centrifuges.” He’s never seen Iran’s nuclear capability as the central policy issue; instead, in Shadi's view, the Deal was important because of the kind of regional actor Iran happened to be. (If Iran was a U.S. ally and a democracy, we’d be having a different conversation). Shadi considered America’s relationship with the Gulf states, the Deal’s effect on U.S. policy toward Syria and how little discussion there has been about what Iranians think and want.

Cody brought us the letter sent by the Senate Foreign Relations Committee to President Obama urging him to “postpone the vote at the United Nations until after Congress considers this [Iran] agreement.”

Matthew Weybrecht alerted us to the ingenious trick that lifts, and keeps, the Iran arms and missile embargo. The Deal will terminate the previous Iran sanctions, but it will also impose a new regime that will retain certain restrictions, including the arms and ballistic missile embargoes for five and eight years, respectively. This amounts to a win-win situation for Iran and the United States because, Matthew wrote, “Iran gets significant relief from economic sanctions and gets to claim it got all the sanctions immediately eliminated. The West, for its part, gets to retain the most important military restrictions for at least a few more years.”

Tamara Cofman Wittes explained that a nuclear deal does not change the fact that it is time---its well past time---for Arab governments to turn the tide of regional chaos. The latter first must move urgently to push the Arab world’s civil wars toward resolution. Second, “Arab governments should urgently do what they can to strengthen the resilience of their own societies and their resistance to Iranian efforts at penetration, subversion and manipulation.” They need work together to bolster their efforts to contain Iranian efforts and strengthen Arab societies against Iranian meddling. Finally, “if Arab leaders fear the consequences of sanctions relief for Iranian action, they could seize the chance now to strengthen their own foundations and gird their societies against what is likely to come.”

In the first of a two-part Foreign Policy Essay series, Gordon Adams and Richard Sokolsky discussed the issue of failing and failed states that pose serious threats to U.S. national security. They argued that the United States cannot simply step in and “fix” failed and failing states in the Middle East or anywhere else. Rather, poor governance and weak institutions are extraordinarily complex, multi-dimensional problems and only the countries themselves can permanently reform them.

On Thursday, Ben found ever more evidence that the Future of Violence approaches, showcasing the video of a homemade quadcopter firing a semiautomatic handgun.

Stephanie Leutert provided the first of her dispatches from Kyiv, describing the view from Ukraine where relative peace demonstrates “the fight for Ukraine’s future has only moved eastwards.”

Ingrid Wuerth linked us to her new commentary on Zivotofsky v. Kerry, which she terms a “foreign relations law bonanza.”

It was a big week for cyber matters. On Saturday, Herb Lin drilled down to the personal level of the OPM hack, taking a look at the human cost of such a massive and incredibly sensitive loss of data. The issues of the OPM hack was also central on the Lawfare Podcast, where Carrie Cordero sat down with Rear Admiral Bob Day (USCG, Ret.) to discuss cybersecurity, accountability, and how the government can encourage agency heads to view cybersecurity as a central objective of their jobs. Admiral Day explains his ongoing work as head of the Virginia Cyber Commission, an effort created by Governor Terry McAuliffe to secure Virginia’s government networks while also expanding opportunities for a cybersecurity business sector in the state.

On the flip side of cybersecurity, Ben continued his series on encryption and the risk of going dark, taking a fresh look at the merits of the debate. Ben breaks the debate into two distinct questions: do we want to live in a world of end-to-end strong encryption, and if not, is it technically possible to provide extraordinary access to law enforcement without eroding other security and privacy values. Point, counterpoint---Susan Landau responded to Ben, arguing that the answer to Ben’s second question is already clear: mandating extraordinary access is mandating insecurity. In the Atlantic, Conor Friedersdorf also took aim at Ben’s series, and the two spar over the question of what exactly is the zone of impunity we are attempting to regulate.

The privacy/encryption debate is firing on all fronts, Paul informed us. He brings us some news of the fight on the hacker and security researcher side.

Finally, Ashley Deeks counseled that the White House engage in a little “surveillance diplomacy” with “foreign journalists, academics, think tanks, and other actors who influence public opinion.” She proposes three goals of surveillance diplomacy: “exposing the disconnect between the perceived lawlessness of U.S. surveillance and the reality of the many, layered rules and oversight mechanisms that apply;” “expos[ing] the deficits of other nations’ systems;” and preparing the field for some basic international norms in the surveillance space.

This week’s Steptoe Cyberlaw Podcast was all about the money---digital money to be exact. Don’t miss Michael Casey, Stewart Baker, and the rest of the Steptoe crew as they discuss bitcoin, blockchain, and the coming age of cryptocurrency.

Aaron Zelin shared the latest Jihadology Podcast on the role of Western women in ISIS. Why do they join? What roles do they play? And what should the United States be doing about it?

Aaron also provided an English-language version of Mullah Omar’s Eid message, which calls peace talks with Afghanistan “legitimate” and takes a number of thinly veiled shots at Abu Bakr al Baghdadi’s self-declared caliphate. Al Shabaab also celebrated the holiday, sending its own Eid message, which Aaron shared here.

Charles Lister wrote on the implications of the recent outreach of Syrian Islamists to the United States and the serious issues that remain in the way of on-the-ground cooperation.

This week in legal disputes: Quinta linked us to a FOIA complaint filed by Laura Poitras, who demands information on why she has been subjected to “secondary security screening and/or detention and questioning” during travel. And Wells told us that Judge Henry Hudson of the Eastern District of Virginia had rejected two motions to dismiss by a former member of the Haqqani Network in Afghanistan, ruling that as “member of a Taliban-affiliated group” he was a lawful combatant taking part in an armed conflict and thus subject to prosecution. And Sean Mirski explained the opening statement of Philippine Foreign Secretary Albert del Rosario in his country’s UNCLOS case against China.

And that was the week that was.