The Week That Was

The Week That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, October 10, 2015, 6:48 AM

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The European Court of Justice ruled against the Safe Harbor framework in Schrems v. Data Protection Commissioner earlier this week—a ruling, which in addition to impacting data movement between the European Union and the United States, also made a splash on Lawfare. Alex Loomis informed us of the ECJ’s decision that the United States does not provide adequate privacy protections and suggested that “the decision almost certainly poses the greatest economic threat to U.S. tech firms in the wake of the Snowden revelations.” Timothy Edgar examined the implications of the Schrems decision by pointing out some facts he believed were ignored by the ECJ. He considers the fundamental differences between the American and European views of data privacy that the United States considers the issue “a matter of commerce” while the EU considers it “a matter of fundamental human rights.” He also argued that surveillance reform is our only hope for reviving safe harbor.

Towards the end of the week, Quinta and Ben shed oh-so-serious light on Facebook’s future in a post-Safe Harbor world.

Cody linked to Army General John Campbell’s testimony before the Senate Armed Services Committee on military operations in Afghanistan, in which he discussed the attack on MSF’s hospital in Kunduz, as well as the possibility of leaving U.S. military personnel in the country after 2016. As the administration contemplates leaving several thousand troops in Afghanistan as a counterterrorism force, Bobby contemplated the “lily pad strategy,” which would involve U.S. forces maintaining bases from which to strike threats to America, and asked whether this is the new normal in the “global war on terror.”

The conflict in Syria keeps getting worse. While newspapers have been packed with commentary on the geostrategic consequences of Russia’s intervention in the country’s civil war, Ben reflected on the millions of Syrians affected by the Great Game in Syria and proposed “that the place for U.S. policy—and military exertion—should lie in civilian protection.”

As the Russians continue to escalate their play in Syria, Ammar Abdulhamid took a look at Russian rhetoric on the conflict in Syria as a “holy war.” He argued that “Russia is serious about its intervention in Syria, and has long-term plans for its future there, plans that go far beyond fighting any terrorists, or shoring up its weakened ally.” Regrettably, those plans seem to have little to do with protecting Syrians, unless by Syrians you mean Bashar Al Assad.

Aaron Zelin posted the latest Jihadology Podcast in which Thomas Joscelyn discussed the mysterious, Al Qaeda-affiliated Khorasan Group in Syria. Joscelyn considered the group’s origin, its key players and their backgrounds, their activities in Syria, their relation to the Al Nusra Front, and how the group can shed light on Al Qaeda’s broader strategy.

Stewart Baker shared the Steptoe Cyberlaw Podcast in which he interviews Bruce Schneier at the conference “Privacy. Security. Risk. 2015.” The two addressed a number of topics including the Safe Harbor case, the issues raised by the Volkswagen scandal, and they “proposed export control rules for intrusion software” in light of Chinese cyber intrusions.

In response to last week’s Steptoe Cyberlaw Podcast, Ben considered James Lewis’s remarks on the U.S.-China cyber deal and noted Lewis’s relative optimism. While many Lawfare contributors have been skeptical about Obama’s stance on cybersecurity with China, Lewis argued that the Obama administration skillfully used the threat of sanctions to come to a generally positive agreement and that China likely made some real concessions.

Ben posted the “He Said, Xi Said” edition of the Rational Security Podcast. Cody, Shane, and Ben wondered whether the Obama administration has foiled Chinese cyber spying and considered the future of U.S. presence in Afghanistan in light of the Taliban’s rise.

Nick Weaver highlighted the seemingly infinite “minefield of tracking devices” on any given web page regardless of any encryption it may have. He also discussed law enforcement’s ability to request the information garnered from what Nick refers to as “the world wide web of spies.”

Samuel Cutler argued that the 1996 Iran Sanctions Act (ISA) is legally irrelevant with regard to the U.S. attempts to “snap back” sanctions on Iran in case of violation of the recently agreed upon nuclear deal. Explaining that the real “underlying legal basis for all U.S. sanctions enacted by the Executive is the International Emergency Economic Powers Act” (IEEPA), Cutler suggested that the IEEPA gives the president “carte-blanche” in curtailing U.S. nationals’ dealings with foreign entities, which would mean that not renewing the ISA would not significantly impact the ability of the president to “snap back” sanctions.

As tensions rise in Israel, Michael Barnett asked what the alternative to a two-state solution is. Barnett argued we should shift focus away from the two-state solution and instead refocus on initiatives to “secure the basic rights and improve the welfare of the Palestinians.” While he did not argue for extinguishing the Palestinian right to self-determination, he suggested that overemphasis on the two-state solution has essentially silenced the discussion of Palestinian rights.

Peter Gourevitch responded to Israeli political advisor Yaakov Amidror. Amidror suggests that concerns over the Iran Deal have combined with controversy surrounding the two-state solution to create a “Perfect Storm,” ultimately calling on the U.S. government to take a more robust stance in the region by intervening with “soldiers, money and words.” Gourevich disagrees, suggesting that the “core difficulty lies in Amidror’s domestic analysis and its link to the external one,” ignoring the internal policy issues that are preventing any sort of agreement with Palestinians and are preventing Israel from having stronger allies.

David Bosco discussed the bombing of the Médecins Sans Frontières facility in Kunduz and the role of ICC scrutiny of U.S. forces in Afghanistan. He suggested that MSF's repeated labeling of the attack as a war crime prompts the question of what body should investigate and prosecute potential war crimes. Though the prosecutor can scrutinize the U.S. forces’ actions in Afghanistan, Bosco suggests that “the likelihood that the Kunduz bombings would ever be the subject of an ICC indictment is ... vanishingly small.”

Cody shared the Lawfare Podcast, which features Ben’s discussion with Scott Shane on his new book Objective Troy. Shane talked about the life and death of Anwar al-Awlaki, highlighting the critical moments that influenced him to leave the United States following 9/11, his transition from an American Islamic leader to an Al Qaeda leader, his role in various Al Qaeda operations, and the connection between his death and the increasing use of drones in U.S. counterterrorism efforts.

Speaking of drones, Quinta claimed to have found President Obama’s “moral muse” with regards to his drone policies in the character of Creon in a 1944 French rewrite of Sophocles's Antigone. She argued that President Obama internally struggles with the morally challenging aspects of complex decision making at a national security level in a manner similar to Jean Anouilh’s Creon and took a closer look at the moral and philosophical choices involved in Obama’s drone use.

Jack shared a piece by Samuel Moyn in Dissent, which argues that civil libertarians in the U.S. have tacitly accepted “the normalization of perpetual, if more sanitary, war.” Jack, in turn, shares his complementary observations from his assessment of Michael Ratner’s fight against the post-9/11 prerogatives that have been given to the President.

Barak Mendelsohn wrote this week’s Foreign Policy Essay, which discussed the limits of the U.N.’s 1267 Committee on counterterrorism and its underperformance. He pointed to factors such as the absence of meaningful threat analysis and a superficial understanding of the global jihadi movement to explain the Committee’s inefficacy.

Bobby discussed the reported (and later confirmed) arrest of former CIA officer Sabrina DeSousa, who was convicted in absentia by an Italian court for her role in the Abu Omar rendition. He looked at her Twitter feed, where De Souza suggests that she is simply a scapegoat for the operation. Bobby argues that “the fundamental point about this development is that it underscores the capacity of foreign governments to impose real consequences on individual U.S. personnel linked to national security activities that those governments view as illegal.”

David Ryan alerted us to the fact that the U.S. District Court for the Southern District of New York had granted a partial summary judgment in a Freedom of Information Act suit on the CIA’s interrogation program.

Steven Vladeck pointed out that the D.C. Circuit "issued an order consolidating two separate appeals by Abd al-Rahim al-Nashiri" which would ultimately bring "yet another immensely significant question concerning the jurisdiction of the [Guantánamo] military commissions." The Al Nashiri case calls into question whether the military commissions can “lawfully prosecute offenses that took place before the 9/11 attacks.”

Ingrid Wuerth explained Monday's oral argument in OBB Personenverkehr v. Sachs, a Foreign Sovereign Immunities Act case. She pointed out the questions being considered by the Supreme Court and how elements of the oral argument related to them.

Finally, in the latest Water Wars, Zack Bluestone discussed the historic Trans-Pacific Partnership (TPP) agreement and explores the strategic consequences of the deal with regards to China's expanding influence in the region. He also provided a helpful round-up of Water Wars news updates as well as related analysis.

And that was the week that was.