The Week That Was

The Week that Was: All of Lawfare in One Post

By Yishai Schwartz
Saturday, January 25, 2014, 10:00 AM

As the week started, Lawfare continued with its coverage of last Friday’s presidential speech on surveillance reform. John wanted a strong condemnation of Edward Snowden, and was disappointed that the President didn’t deliver. Paul noted (unhappily) that according to some reports, President Obama’s promise not to spy on friendly heads of state may apply to “dozens” of foreign leaders.

On the more positive side, Ben interpreted the president’s speech as “a strong and tactically clever defense of the intelligence community,” and argued that the President largely translated existing best-practice intelligence policies into values language. Ben also posted a National Constitution Center podcast, in which he and Review Group member Peter Swire reflect on the president’s speech together.

Tim Edgar examined some alternatives to data bulk collection and suggested that there might be ways to maintain current capabilities but without the NSA or a third party storing metadata.

The President’s speech hasn’t stemmed the tide of criticism of NSA program, however:

Wells linked to the Privacy and Civil Liberties Board report on NSA surveillance. Paul immediately suggested that the Board’s decision to opine on 215’s legality (and do so along party lines) was a dangerous misstep. Paul also later linked to a digest of the report.

Ben reviewed the New America Foundation’s critical report on NSA bulk data collection, and notwithstanding multiple avowals of respect for Peter Bergen, found the report to be a “serious misfire.” He also brought us a Pew poll showing declining public approval of NSA metadata collection, and that a small majority believes the Snowden disclosures were in the public interest. Interestingly, the same poll also found that a strong majority of Americans wants to see Snowden prosecuted. Consistency, of course, is the hobgoblin of small minds. Our American public has a giant mind, apparently.

But what about those who don’t think Snowden should be prosecuted? Ben flagged a lengthy piece by Sean Wilentz in the New Republic questioning the heroic status that national security leakers have been accorded by the political left. Wilentz argues that the previous writings of Ed Snowden, Julian Astrange and Glenn Greenwald reflect the minds of “paranoid libertarians” who are actually committed to harming the modern liberal state.

We announced the creation of a new page to catalog the nature and scope of all NSA disclosures since Edward Snowden’s original leaks in June 2013. Use it for good, not for evil.

Navigating government secrecy amid the possibility of leaks is, of course, a tricky business. Jack linked to his Hoover essay where he takes up a partial defense of the “front-page” rule: if the American government doesn’t think it could convince the public of a covert action’s wisdom if it needed to so, it shouldn’t engage in the action.

Transparency is coming regardless---if not from the government, then from the private sector.  Paul noted that Verizon recently became the first telecommunications company to issue a public report explaining how and when it gives customer data to the government.

And yes, Lawfare still posts on topics unrelated to Snowden, metadata and privacy concerns---sometimes, anyway..

John commented on federal judges’ recent legal victory in their lawsuit seeking promised cost-of-living raises, and he notes that judges and national security lawyers are still making far below their peers in the private sector. And Ben flagged Gregory Johnsen’s gripping---and critical---Buzzfeed essay on the creation and development of the post-9/11 AUMF.

Matt drew our attention to a provocative new report from the Center for New American Security Publication, 20YY: Preparing for War in the Robotic Age. The report indicates that the move toward autonomous weapons is inevitable, and Matt is looking forward to much more from CNAS’s multi-year project on the topic.

Paul linked to the annual Global Threat Report 2013 just issued by CrowdStrike, a US-based cybersecurity company, and flagged the announcement in Davos of the creation of a Global Commission on Internet Governance. He also linked to a report suggesting that a systematic attack on the power grid may be, alas, more plausible than he had understood.

Ben brought us a brief obituary from Hugo Teufel III reflecting on the role the late Representative Otis G. Pike played a leading role on the House Select Committee on Intelligence that, alongside with the Church Committee, provided the first meaningful congressional oversight to the intelligence community.

Our coverage of Guantanamo continues as well: John noted the fifth anniversary of President Obama’s pledge to close the unpopular prison, praised the President for his renewed focus on the goal, and he urged bipartisan support for the complicated effort.

Wells previewed oral arguments before the DC Circuit in Abdullah v. Obama, and then gave us a play-by-play of the actual proceedings. The detainee’s argument rests on a 1946 executive agreement between the U.S. and Yemen and a constitutional claim regarding the president’s recognition powers. But the judges seemed more interested in the procedural question regarding whether the issue would be better addressed as part of a habeas hearing, a hearing for which the Abdullah has been waiting years. And Raffaela noted the D.C. Circuit's per curiam judgment in the case of Obaydullah.

We also haven’t abandoned the rest of the world:

Ashley caught us up on a Clancy-esque ICJ case featuring East Timorese complaints of Australian theft and espionage. She suggested that in the Snowden disclosures’ aftermath, the ICJ may be inclined to address the legality of international surveillance.

Bobby posted on a fascinating paper by Naz Modirzadeh on "the existence of distinct tribes of IHL and IHRL scholars in America."

In his foreign policy essay, Dan brought us analysis of the Syrian opposition from Brookings Doha fellow Charles Lister. Lister describes a fractured, but overwhelmingly Islamist, Syrian opposition that has turned on itself and, particularly against, one extreme Islamist organization, Islamic State in Iraq and al-Sham.

Jane reviewed a new Frontline documentary, Secret State of North Korea, and explains that the country is more open now, and that the regime’s absolute control is less secure than one might think.

Finally, Wells linked to a powerful story by Asra Nomani in the Washingtonian. Nomani discusses her relationship with the murdered reporter Daniel Pearl, and her reactions to the trial of Khalid Sheikh Mohammed, the man who confessed to cutting Pearl’s throat.

And that was the week that was.