The Week That Was

The Week That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, September 12, 2015, 9:35 AM

Reflecting on the 14th anniversary of 9/11, Carrie Cordero urged professionals engaged in the national security sphere to read the original 9/11 Commission report. In remembering her experience standing on top of the World Trade Center just weeks before the buildings' collapse, she suggested that the recollections of 9/11 and its implications are increasingly fleeting as a new generation of professionals begins to work within national security.

Cody shared the latest Guantanamo Bay detainee recidivism report, pointing out that since January 2015, an additional ten former detainees are now suspected of having reengaged in the fight against the United States. Five of these men were released by the Obama administration. A total of 117 of the 653 detainees released under both Obama and Bush are believed to have rejoined the fight.

Ben wrote about William McCant’s analysis of Abu Bakr al Baghdadi. McCants highlights the unique blend of piety, capability, and absolute faith that have led Baghdadi down the path of religious extremism as the leader of the Islamic State.

Ben also reviewed Scott Shane’s new book Objective Troy, a spy-thriller that details “the strange death and stranger life” of Anwar al Awlaki, the American imam turned AQAP operative who was ultimately targeted and killed in Yemen by a U.S. drone strike. Ben points to the book's unravelling of the many threads that contributed to al Awlaki’s story, including his personal background and eventual transformation to jihadism, the rise of Obama’s reliance on the drone program, the use of the program to target an American citizen, and the creation of American counterterrorism as we know it.

This week saw harbingers that the American model of counterterrorism spreading, and Bobby discussed the U.K.’s airstrike that targeted and killed the British civilian Reyaad Khan in Syria. Bobby explains that Prime Minister David Cameron appeared to justify the strike through Iraq’s right of self-defense. He likened the British strike against Khan to the American strike that killed Anwar al Awlaki.

Ashley Deeks followed up on Bobby’s article by looking at the legal justifications supporting airstrike operations in Syria, citing principles of self-defense against imminent attack by non-state actors compounded by the unwillingness or inability of Syrian actors to respond appropriately. Ashley pointed to how elements of these justifications have been used in the French, English, and Australian decisions to commence using force in Syria.

Ben discussed the increasing use of the term "hybrid conflict" to discuss conflicts involving aspects of both traditional state-to-state conflict as well as non-state actors after attending a conference on how lawyers should conceptualize the idea. Ben suggested that while so-called "hybrid conflict" is not particularly new and does not particularly challenge international humanitarian law, there are several critical aspects that needed to be examined, including laws relating to the cyber domain.

Cody posted Hillary Clinton’s remarks at Brookings, where she addressed the Iran nuclear deal. The former Secretary of State discussed topics ranging from the G.O.P. letter to Ayatollah Khamenei to the impact of the deal on Israel.

Cody also linked to the debate hosted at Brookings concerning the deal on Tuesday evening. Moderated by Major Garrett of CBS News, Brookings' Bruce Jones provided opening remarks while Senator John McCain (R-AZ) and Brookings senior fellow Leon Wieseltier debated Brookings senior fellows Suzanne Maloney and Bruce Riedel.

Aaron Zelin posted a translated version of an article from Shaykh Abu Qatadah al-Filistini concerning “The Importance of Jihadi Media.” The article draws upon the important role that media plays in disseminating not only the jihadi message but also in spreading the impact of various acts of jihad and protecting young Muslims from being swayed by “misguided” media. Al Filistini applies Quranic language to explain the importance of the media battle.

Stewart Baker posted the 79th episode of Steptoe Cyberlaw Podcast in which he interviewed Peter Singer, whose recent book describes a military conflict with China that incorporates all of the weapons that the United States and China are likely to deploy within the coming decade. The episode recapped some of the month's most important developments in cyberlaw, touching on the impact of data breaches as well as the fight concerning location data and the warrant requirement.

Alex Ely provided an overview of the oral argument for the case between the United States and Microsoft as heard by the United States Court of Appeals for the Second Circuit on Wednesday. In his review, Alex suggests that the case will largely be determined by the interpretation of the Electronic Communications Privacy Act, a law that he describes as anachronistic in its treatment of global electronic communications. Andrew Woods also commented on the case, but suggested that the case had relatively low stakes for Microsoft. He analyzed the impact that a Microsoft victory would have and suggests that it “would do more harm to the future of the Internet, privacy, and public safety than would a loss.” Paul Rosenzweig linked to the transcript of the oral argument.

Mailyn Fidler considered the implications of the U.S.-Ireland Mutual Legal Assistance Treaty for not only law enforcement and companies but for national and cyber security as well. She explained the need to reform the MLA process to “provide workable legal oversight of cross-border data requests.”

Paul Rosenzweig shared readers’ thoughts on a possible breach of the TrueCrypt encryption program. Paul observed that the broad consensus among readers was that stories about the breach were misreported and that any suggestion that TrueCrypt had been cracked was misleading.

Carrie Cordero explained why universities are popular targets for hackers, describing how factors ranging from university budgets to the retention of data and research, to even the lack of accountability, make universities popular targets. More than 40 colleges and universities have been affected within the last three years, and Carrie’s article comes after nearly 80,000 students across eight Cal State campuses were allegedly hacked.

Nicholas Weaver talked about how the NSA system enables isolation of items of interest, follows threads, and aids retroactive analysis. Weaver also explained that internet surveillance is about pulling threads, "starting with some initial piece of interest" and following its digital history, a process that requires the collection of bulk data. He also outlined the dangers posed by foreign powers that can tap into the system and calls for the United States to protect its network traffic from any such threat.

This week's Lawfare Podcast reupped the podcast's only venture into science fiction:

Cody posted the HSPCI hearing on worldwide cyber threats, which featured testimony from Director of National Intelligence James Clapper, NSA Director Adm. Michael Rogers, CIA Director John Brennan, FBI Director James Comey, and Director of the DIA Lt. Gen. Vincent Stewart.

Joanna Harrington kicked off Lawfare’s joint series with Intercross and EJIL:Talk! with a post discussing the interplay between international human rights law and international humanitarian law. Harrington describes an accountability gap that can be perceived by the “lack of an international adjudicative body to provide authoritative interpretations of the Geneva Conventions and Protocols.” She considers the ten human rights treaty-monitoring bodies and the function given by state consent to each body and then points to the distinction between the substantive guarantees accorded by a human rights treaty and its provisions regarding oversight.

Dustin Lewis, Naz Modirzadeh, and Gabriella Blum wrote about medical care in armed conflict and the international humanitarian law concerning wartime medical assistance with regards to terrorists. They point out the fragmentation of IHL concerning medical assistance present within the various states’ interpretations of the related laws.

Llewelyn Hughes and Austin Long wrote this week’s Foreign Policy Essay on national security, energy, and what they see as the United States’ surprising advantage. Given the move towards diversification of sources, the authors consider the United States to be the "real monopolist in energy markets, replicating the dominance it enjoyed in the pre-World War II period in oil production and the transport segment of the oil supply chain." This represents a shift from historic fears that OPEC states could once again regain market power and use it to coerce dependent countries.

And Ben posted this week's episode of Rational Security, which features discussion of Donald Trump's ignorance of important terrorists:

And that was the week that was.