The Week That Was

The Week That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, October 17, 2015, 10:21 AM

It is with a heavy heart that we announce the departure of Wells Bennett, our long-time managing editor. Given Wells’s work writing and editing Lawfare’s posts, contributing to critical original Lawfare investigations, producing serious legal scholarship, and facilitating a friendly, combative office culture at Lawfare, perhaps it’s fair to say that “all’s Wells that ends wells”--whatever that may mean.

As Wells leaves us, however, Lawfare recently added several new contributors--announced this week by Ben. While they won’t be unfamiliar to regular readers, we are excited to welcome Naz Modirzadeh, Nicholas Weaver, and Andrew Woods to what ACLU lawyer Jameel Jaffer once derisively termed "the Lawfare Clubhouse."

Ben also shared the “'Fond Fair Wells' Edition of Rational Security. Ben was joined by Quinta Jurecic and Shane Harris in a discussion of the Intercept’s “Drone Papers,” Obama’s moral muse, and of course, the departure of Wells Bennett.

With the release of Steven Spielberg's Bridge of Spies, Jeffrey Kahn described the case of Colonel Abel, a Russian spy who was captured in 1957. Exploring the legal history of the case, he concluded that “the real Abel case should leave you … wait for it … shaken, not stirred.”

Bobby considered The Cuckoo’s Egg: Tracking a Spy through the Maze of Computer Espionage, published in over a quarter of a decade ago, and explained why it’s still worth reading. The book discusses the spectrum of 1980s cyber threats and responses, drawing conclusions which might sound familiar to today’s readers. Bobby also points to some interesting excerpts from the book.

Tim Edgar examined the Schrems v. Data Protection Commissioner case and wonders “whether there is a practical way to amend US surveillance law” that would satisfy European privacy concerns raised by the ECJ decision. Peter Margulies pushed back on Tim’s “suggestion that Congress drop the ‘conduct of the foreign affairs of the United States’ prong of the FISA Amendments Act (FAA),” arguing that such a measure fails to consider the cost of the proposed reform. He suggested that the U.S. intelligence community will need to focus 702 collection on “specific security threats.” Tim also continued his series on the case, remarking on the hypocrisy in Washington and Brussels.

Mirko Hohman informed us that the German Bundestag passed a new data retention law, which “seeks to make law enforcement more effective in the face of increasingly pervasive information and communications technologies.” He looked at the implications and various criticisms of the law.

David Forscey argued that Congress should declassify the legislative negotiations over the FISA Amendments Act in order to give the public insight into the decision-making behind it. He suggested that transparency could help inform public arguments and that the legislative history could help in judicial interpretation of the FAA’s provisions.

Paul suggested that the NSA might be able to crack public key encryption and posits that as much as 30-50 percent of internet traffic can be decrypted. Nicholas Weaver also looked into how the NSA may be performing bulk decryption using the weaknesses in the Diffie-Hellman algorithm, a key exchange used by internet protocols to negotiate a secure connection. He sheds light on how Diffie-Hellman works and how the NSA could possibly exploit its weaknesses to collect data.

Herb Lin considered the use of manual procedures as protection against cyber threats, highlighting the importance of learning how to operate militarily without access to electronic and cyber systems.

Stewart Baker posted the 84th Steptoe Cyberlaw Podcast which featured Lawfare’s own Jack Goldsmith. The two covered cyber espionage, safe harbor, and how the globalized economy has tied the U.S. government’s hands. The podcast also featured snazzy new intro music.

Francesca Procaccini shared last week’s deferred ruling on the government’s petition for an order that would force Apple to disable security on an Apple device. The New York district judge suggested that he did not think the government has legal authority to make such an order in the case of Apple after reviewing legislative history “on compelling companies to enable law enforcement to access locked data stored on smart devices.”

Herb Lin shed light on the confusing rhetoric in the encryption debate, discussing the rhetorical distinctions. He ultimately cautioned "that a genuinely neutral technical analysis [...] should seek to avoid loaded language" as he observed that each side involved in the debate “uses words to describe its own position that seek to claim the moral high ground and other words to denigrate the positions of its opponents.” Nick Weaver asked, “Can Technologists Talk Lawfare?,” arguing the importance of dialogue between "Lawfare types" and technologists in the discussion of cyber policy.

Cody posted the Lawfare Podcast, which featured an interview with the Brookings Institution’s Chief Information Officer Helen Mohrmann. She shared her experiences maintaining Brookings’ cybersecurity, highlighting the “difficulties of securing a large, decentralized, public-facing organization from a vast array of cyber-attacks.” She also proposed some steps that both organizations and individuals can follow to beef up their own cybersecurity.

In the Foreign Policy Essay, Jacob Olidort looked at the fall of the Muslim Brotherhood and the rise of Egyptian Salafis following a government crackdown on the rival Muslim Brotherhood. He explored the action and rhetoric of the two groups and concluded that “new political environment in which Brotherhood-oriented parties are on the defensive combined with new channels of communication that give audience and access to anyone with the ability and interest to propagate religious teachings both work in the Salafis’ favor.”

Aaron Zelin shared this week’s Jihadology Podcast, featuring Will McCants. They discussed McCants’ new book, The ISIS Apocalypse: The History, Strategy, and Doomsday Vision of the Islamic State and various jihadi groups’ attempts to govern.

As President Obama announced plans to deploy 300 U.S. soldiers to Cameroon to manage a drone base that would help fight against Boko Haram, Cody linked to the War Powers letter sent by the Present informing Congress of the decision. “With the consent of the Cameroon government,” the letter explained that 90 troops began deploying as of Monday. In light of the President’s announcement, Quinta examined the law underpinning the presence of U.S. drone bases in Africa and the surrounding areas.

The Intercept’s “Drone Papers prompted several Lawfare responses. Adam Klein responded to the Intercept’s release of Pentagon documents on the drone program by stating that the “documents themselves are hardly as damning as the breathless tone of the reporting suggests.” Quinta also took a look at the Intercept’s work and concluded that “there actually isn’t all that much new information in” the released slide decks.

Charlie Dunlap discussed President Obama’s War Powers legacy and asked how and why "the President has – de facto – institutionalized (if not expanded) War Powers, at least insofar as drone operations are concerned."

David Bosco looked at the ICC prosecutor’s decision to seek an investigation into the 2008 hostilities between Russia and Georgia, a decision which “marks the first time the prosecutor has sought an investigation outside of Africa.” He suggested that several aspects of the decision which could point to change in geopolitical risk tolerated by the Office of the Prosecutor.

Speaking of war crimes,

Amira Mikhail, Lawfare’s newest student contributor, looked into why France’s criminal investigation into crimes committed in Syria matters despite challenges it might face. Amid Russian attempts to bolster Bashar al-Assad’s regime, the French investigation serves to remind the international community of crimes perpetrated by his regime. The investigation could prompt calls for accountability in any post-conflict settlement and could also yield important evidence for any future international efforts to investigate or prosecute potential Syrian war crimes.

Zack Bluestone posted the latest Water Wars, in which he highlighted the continued discussions about U.S. plans to conduct freedom of navigation operations in the South China Sea. He also pointed to the verbal sparring that has occurred between American and Chinese officials. Zack also shared the recent Water Wars related news and commentary.

Finally, some exciting events coming up: Ben announced a new series of book events Lawfare will be running with the Hoover Institution here in Washington, D.C. The first event is on October 21st and will feature Will McCants and Joby Warrick discussing ISIS and its dark future. RSVP here. Also, Cody shared that the 25th Annual Review of the Field of National Security Law will be held from November 5-6, 2015. RSVP here.

And that was the week that was.