The Week That Was

The Week that Was: All of Lawfare in One Post

By Elina Saxena
Saturday, September 19, 2015, 8:15 AM

With all of the recent concern over the Obama administration’s attempts to train and equip Syrian rebels Jack and Wells both attempted to answer the question of how Article II of the Constitution could authorize U.S. military defense of Syrian rebels against Bashar Al Assad’s forces. Jack traced the history of the administration’s ever expanding interpretations of Article II and provided a number of possible interpretative extensions that the administration could try to make. Wells, by contrast, discussed the historical precedent for military action to protect foreign nationals, as seen in the Office of Legal Counsel’s 1992 decision concerning U.S. authority to use military forces in Somalia and the possible jumps in interpretation that the administration could make from that. Jack announced his plans to attend the Duke-Yale Foreign Relations Law Roundtable, which will discuss Obama’s War Powers Legacy.

Jack also considered the Vesting Clause, which “confers all traditionally executive foreign relations powers not specifically allocated elsewhere,” as it appears throughout the Zivotofsky v. Kerry decision. The case and prior interpretations have chipped away at the theory of the Vesting Clause as a residual source of presidential power, but Jack concluded that this likely has few repercussions outside of the academy, as the use of historical practice to interpret presidential powers under Article II has largely favored presidential power.

Stewart Baker posted the 80th episode of Steptoe Cyberlaw Podcast which provided analysis of the Microsoft lawsuit, the recent “umbrella agreement” on data exchange between the United States and the European Union, and a series of other other issues. With regards to the U.S.-E.U. agreement, Stewart skeptically disparages the premature celebration of what he considers a sell-out by the Department of Justice negotiators. He also asked for listeners to weigh in on the decision to either keep or change the current podcast theme music.

Ben pointed out that the White House's reluctance to consider legislation dealing with encryption on communication devices indicates a victory for industry. With the upper hand on the encryption debate, industry actors could be encouraged to pursue stronger means of encryption without fear of having to cooperate with any law enforcement or intelligence agencies in future administrations.

Jack reflected on U.S. difficulties with cyber deterrence in light of Obama’s posturing concerning repeated threats to impose sanctions on Chinese individuals and entities responsible for data breaches. Asking at what point the administration will take serious steps to deter future cyber attacks, Jack proceeds to enumerate the numerous examples of China-linked cyber intrusions.

Herb Lin considered the connection between hybrid conflict and cyber conflict in response to Ben’s post from last week. Herb asks if the connection between hybrid and cyber conflicts might not be closer than people speculate, suggesting that “hybrid conflict might well be characterized as cyberwar without the cyber parts.”

Mirko Hohmann discussed the challenges posed by German surveillance reform. Despite Chancellor Angela Merkel’s criticism of the NSA’s data collection programs, Germany’s intelligence agencies continue to rely on the software of and data collected by their American counterparts. Mirko argues that in order to maintain credibility in the international arena, Germany “must subject itself to the level of transparency and parliamentary oversight that it publicly demands of others.”

Bruce Riedel reviewed Joby Warrick’s Black Flags: The Rise of ISIS which discusses the “rise, fall, and resurrection” of the terrorist group. The book traces the history of Abu Musaib al Zarqawi in his creation of the Islamic State. Referring to the book as a “definitive book on Zarqawi,” Bruce predicts that “it will become one of the must reads on how Al Qaida has adapted again and again in spite of global efforts to destroy the group and especially its ideology and narrative.”

Following the release of his own book on ISIS, William McCants pointed to the divergent accounts of what radicalized Abu Bakr al-Baghdadi, adding that America was not the only party to blame.

Aaron Zelin posted the Jihadology Podcast and discussed the role of Islam in Saddam Hussein’s Iraq with guest Kyle Orton. Topics ranged from the 1980s reorientation Saddam’s Islamist foreign policy to the rise of sectarianism in Iraq. Aaron also covered recent jihadi social media in the #SocialMedia segment.

Cody shared this week’s Lawfare Podcast, in which Ben sat down with Harvard Law School Professor Gabriella Blum and Dustin Lewis, a senior researcher at Harvard Law School’s Program on International Law and Armed Conflict (PILAC). They discuss their new report that considered whether or not we should treat medical care as a form of illegitimate support to terrorists. Blum and Lewis argue that such care should not be considered a form of illegitimate support to terrorist and shed light on the gaps in international humanitarian law that are exposed by the debate.

Ben invited listeners to join himself and the Rational Security crew in avoiding Wednesday’s Republican primary debate in this week’s episode of Rational Security. The episode featured discussions of the implications of the United States’ reluctance to slap sanctions on China, the importance of international partnerships in U.S. counterterrorist operations, ISIS, and the future of jihad. Ben also recalls the time when he brought explosives to school.

Not heeding Ben’s advice, Quinta took a look at Wednesday’s debate and identified a handful of Lawfare-related statements candidates, shedding light on some of the candidates’ positions on critical security issues. The candidates discussed policy topics including Russia, Syria, Iran, intervention, and ISIS.

Jack analyzed the argument that the Iran Review Act prohibits Obama from lifting sanctions against Iran, looking at whether or not the president had the statutory duty to transmit the IAEA side deals as well as the implications of the president's failure to transmit those same deals.

And that was the week that was.