The Week That Was

The Week that Was: All of Lawfare in One Post

By Staley Smith
Saturday, August 1, 2015, 10:00 AM

This week’s Lawfare Podcast features interviews from the Aspen Security Forum with—among others—FBI Director James Comey, DHS Secretary Jeh Johnson, and NSA Director Adm. Michael Rogers.

Ben also posted full interviews from the Aspen event on a range of topics including, but not limited to:

  • Counterterrorism and Countering Violent Extremism

  • Chinese Assertiveness in the South China Sea: Harbinger of Things to Come?

  • Cooperation and Conflict in the Relationship between Government and Industry in Cyberspace

  • Herding Cats: Synthesizing the Intelligence Community

  • Hitting the Security Reset Button: Time to Rethink Our Approach?

  • The NSC, DHS, and State: Using All the Instruments of National Power to Combat Threats

  • The Mideast Cauldron: Hotter Than Ever Now?

  • Law and Order: How will the Lynch Justice Department Confront the Terror Threat?

In what Ben described as the best episode of Rational Security to date, he, Tamara and Shane Harris of the Daily Beast discussed whether it even matters that Taliban leader Mullah Omar is dead, if ISIS has eclipsed Al Qaeda as the most important terrorist threat to America and if FBI Director James Comey's plan for “back doors” in encryption systems was undermined when three former senior security officials cast doubt on the idea.

Susan Landau brought us two different perspectives on “going dark,” also known as end-to-end encryption, that were presented at Aspen. Secretary of Homeland Security Michael Chertoff maintained that providing security for ordinary people makes law enforcement's job harder, but that it’s the right trade-off. On the other hand, Former Director of the National Counterintelligence Center Michael Leiter says that government has to face reality, and “not what you hope reality will be.”

John Bellinger considered whether President Obama’s visit to Kenya was a snub to the International Criminal Court (ICC). On a trip to Africa last week, President Obama met with two Kenyan leaders, President Uhuru Kenyatta and Deputy President William Ruto; the former had been charged for a time with international crimes by the ICC prosecutor, and the latter remains under indictment. John argued that President Obama’s willingness to meet with both Kenyan leaders while they remain under ICC investigation demonstrates a less supportive approach towards the Court than ICC advocates have hoped for.

Ashley Deeks pondered the different legal theories that support U.S. airstrikes against al Shabaab. For one, she says, the United States now might consider al Shabaab have become co-belligerents alongside al Qaeda. Secondly, the United States might be acting on behalf of the Somali government, assisting it in its non-international armed conflict against the group. And lastly, the United States might be acting in a kind of “collective self-defense” of AMISOM, which can take “all necessary measures” to carry out its mandate, including reducing the threat to Somalia posed by al Shabaab.

Bobby followed up with a response to Ashley’s post in which he questions the domestic law basis for U.S. airstrikes supporting AMISOM in Somalia. He claims that the public record suggests that the U.S. government has not yet concluded that al Shabaab as a whole has come within the scope of the 2001 AUMF, notwithstanding its AQ-franchise status. He reminded us how broadly the Obama administration construed its independent Article II authority to direct airstrikes (even if not boots-on-the-ground) in Iraq during the first few months of airstrikes against ISIS. In conclusion, Bobby proposes that similar arguments to those made for ISIS are being mounted in connection with the protection of AMISOM forces.

On Monday, Ben played a game called, "If I were the PLA, I'd Spy With My Little Eye." He tipped us off to other unclassified databases the that the Chinese are probably stealing beyond OPM data, including: FDA Investigative New Drug Applications; Veteran Health Administration information; visa applications; Security and Exchange Commission investigative files; export control applications; and IRS tax returns. Paul Rosenzweig then piled on a few more possible databases the Chinese are eyeing: data related to reviews by the Committee on Foreign Investments in the United States; the Nuclear Regulatory Commission sensitive information database; the Federal Energy Regulatory Commission filings; drivers' license files in the 50 States; and just for fun, he says, the scientific research at our Universities.

Then came the idea for a Lawfare Contest, in which Paul and Ben invited Lawfare readers to submit their nominations for “most interesting, vulnerable, hackable, unclassified database in the United States government.” Let’s just say that Lawfare readers have proposed some gold mines of information for the PLA’s next target. Through their crowdsourcing experiment, Ben and Paul hoped to illustrate the volume and diversity of information in unclassified government databases that a foreign intelligence adversary might find enticing. They also used as a way of encouraging the database managers to look at their own condition with a more critical eye and potentially to inspire the intelligence community to think about the problem of unclassified material in databases around government.

Bruce Schneier argued that back doors won't solve FBI Director James Comey's “going dark” problem and that the problem is that there exists at least one securely encrypted communications platform on the planet that ISIS can use for communication.

In piece that drew an energetic response, Ben and Zoe Bedell analyzed a new theory of liability under which Apple could be held accountable of supplying material support to a terrorist group: the civil terrorism remedies provision of the Antiterrorism Act. Glenn Greenwald and Christopher Soghoian (along with others) took to Twitter to express their outrage at the argument, but failed to provide any explanation of whether Ben and Zoe describe the law cogently or not.

In a piece for the Intercept---which quoted a response by Edward Snowden---Jenna McLaughlin wrote about Ben’s and Zoe's liability analysis. Ben and Dan Froomkin of the Intercept then engaged in a Twitter exchange about the piece's accuracy; Ben subsequently wrote about the back-and-forth, asking whether, during it, the Intercept had admitted to making up facts.

On Tuesday, Secretary of State John Kerry, Secretary of the Treasury Jack Lew, and Secretary of Energy Ernest Moniz provided testimony to the House Foreign Affairs Committee Hearing on the Iran nuclear deal before the House Foreign Affairs Committee. Lawfare noted the proceedings. Apropos: Jack detailed five more weak arguments from David Rivkin and Lee Casey of the Wall Street Journal about the illegality of the Iran deal. He goes on to say that “The President’s Team has (as Presidents’ Teams are wont to do) stitched together his legal authorities in a clever way to empower him to pull off the very consequential Iran Deal. The Deal may well show that Congress has delegated or acquiesced in the expansion of too much presidential power. Perhaps Congress will draw lessons from and act on that realization—but I doubt it.”

The White House responded to a petition to pardon Edward Snowden, filed on June 9th, 2013, that has received 167,954 signatures.

Cody updated us on what will happen when the USA Freedom Act goes into effect on November 29, 2015. According to the Office of the Director of National Intelligence, the National Security Agency will no longer access the historical metadata collected under Section 215 after the 180-day transition period authorized under the Act.

The in #77 Episode of Steptoe Cyberlaw Podcast, Stewart Baker and Alan Cohn interviewed Bruce Andrews, the deputy secretary of the Commerce Department. They pepper Bruce with questions about export controls on cybersecurity technology, stopping commercial cyberespionage, the future of the NIST cybersecurity framework, and how one can get on future cybersecurity trade missions, among other things.

In other news, Zoe Bedell reviewed "Guantanamo Diary" by Mohamedou Ould Slahi. Zoe views the detainee's work as a “fascinating, but definitely one-sided, account of American detention and interrogation operations from a particular and very controversial period following 9/11.” Zoe concludes in any case that the narrative is “a side of the story that should be understood and internalized for Americans to begin to understand what the cost of the war on terror really is.”

Wells let us know that the United States was once more seeking en banc rehearing in the Ali Hamza Ahmad Suliman al Bahlul vs. United States military commissions case.

Wells also provided an update on the opinion on end-of-war motion in the Al Warafi case. The gist of Judge Royce Lamberth's opinion, he said, is to deny the detainee's motion to grant his petition for a writ of habeas corpus.

Bobby notified us about yet another arrest of a U.S. Citizen allegedly inspired by ISIS to plot an attack.

Andrew Kent challenged the notion that there has been continuity over time in the legal protections offered to individuals affected by national security and foreign affairs activities of the United States government; he argues, in essence, that there are fewer and fewer "legal black holes."

Yishai and Jen Williams gave us an update on the Middle East where tensions between Bahrain and Iran continue to rise, Israel is providing limited cooperation to the ICC’s preliminary examination into last summer’s Gaza War, Egypt and Saudi Arabia signed “Cairo declaration” and Kuwaiti authorities broke up an alleged Islamic State terror cell.

Jeremy Shapiro wrote a satirical piece on Ayman al-Zawahiri’s terrible, horrible, no good, very bad day---which had its roots in the death of Mullah Omar.

On that subject, Aaron Zelin provided two translated statements from the Taliban this week. The first was an announcement from the Taliban, announcing the death of their “Leader of the Faithful Mullah Omar.” The second was a statement from the group about appointing a new leader. In related news, Aaron posted an emergency episode of the Jihadology Podcast, in which he talked J.M. Berger about the confirmed death of Omar and a variety of related topics, including the event's significance for the broader Islamic State - Al Qaeda war.

Finally, Carrie Cordero offered a peek at summer’s unexpected thrill: NASA’s discoveries in space. Her top three favorites? New Horizon’s exploration of Pluto, Earth's "older cousin," Kepler-452b, and Commander Scott Kelly’s exquisite pictures and pithy observations as he keeps watch over us all while we sleep, which you can follow via the hashtag #year in space.

And that was the week that was.