The Week That Was

The Week that Was: All of Lawfare in One Post

By Elina Saxena
Saturday, October 24, 2015, 8:32 AM

Reflecting on the raid on an Islamic State compound in Iraq that left one American serviceman dead, Bobby reminded us that the U.S. “assist” mission in Iraq does not preclude combat situations. He clarified that during “train and assist” missions, U.S. forces “from time to time will go outside the wire not only to provide airlift for local partners, but when the right circumstances arise to be present on the ground assisting operations in other ways—including using force as they and their partners come under fire.”

Following President Obama’s decision to leave troop presence in Afghanistan following his departure from office, Jack argued that the “forever war is entrenched,” and that over the last two presidential administrations, “the military, intelligence, legal, and bureaucratic architecture for supporting endless war...has matured, normalized, and become entrenched.”

Jack and Ben previewed the first Hoover Book Soiree, which was hosted at the Hoover Institution. Ben interviewed Will McCants and Joby Warrick on their new books on the Islamic State.

Carol R. Saivetz wrote this week’s Foreign Policy Essay which looks at Russia’s support of Assad in Syria. She explained that Moscow’s overt support of the Assad regime seeks to switch international focus from Ukraine to Syria, to prevent the West from “[staging] another revolution from the outside,” and to foster a closer relation with Tehran. Despite the short term benefits of military involvement in Syria gives Russia, she questions the potential long-term repercussions, including deteriorating relations with NATO.

With Russian involvement changing the status quo in Syria, Maj. Patrick Walsh asked if Russian action could threaten the “unwilling or unable” theory that is used by the U.S.-led coalition as the legal basis authorizing the use of force against ISIS in Syria.

In other Russian related news, Ben reiterated his challenge to Vladimir Putin, declaring that he will fight him any time and in any place where Putin can’t have him arrested. Ben’s challenge stems from a critique of Putin’s “displays of the crudest forms of masculinity,” which, Ben suggested, “are deeply connected to his aggression against his neighbors, his repression of dissidents, and his grotesque treatment of the LGBT community at home.”

Cody previewed this week’s hearings in the 9/11 military commissions case at Guantanamo. The pre-trial session began on October 19 and is expected to run until October 30 with over 40 items on the docket. Covering the first day’s proceedings, Francesca Procaccini examined the questions raised by Walid Bin Attash’s request to represent himself pro se over the course of the trial. She continued her coverage of the hearings, explaining how the question of pro se representation has opened a pandora’s box. Zack Bluestone explained that the October 21 hearing was cancelled as the translator was otherwise engaged in translating the conduct order discussing the pros and cons of pro se representation into Arabic. With the return of the translators, Yishai Schwartz discussed Thursday’s proceedings.

Ben shared the discussion between John McCain and Mac Thornberry concerning the 2016 National Defense Authorization Act at a Brookings event earlier this week. Cody shared President Obama’s promised veto of the NDAA. Explaining the decision, the President suggests that the NDAA falls short by maintaining the sequester that inhibits stable military funding, by preventing reforms that would help the U.S. military to modernizing, and by hindering the closure of Guantanamo Bay. This is only the fifth time that the President has used his veto power. Bobby suggested that the NDAA just might tweak the framework for lethal operations oversight.

Following Wikileak's dubious doxxing of CIA Director John Brennan, Robert Loeb and Matthew Weybrecht explored the legal issues surrounding the hack of Brennan's personal email account. They looked at potential criminal liability for the hacker, civil liability for Verizon or AOL, and the need for greater protection for federal officials.

R. Taj Moore looked at what was in the California Electronic Communications Privacy Act, which was “designed to strengthen electronic privacy against law enforcement access to data.” Taj describes the warrant and the notice requirement for metadata acquisition as stipulated by the Act.

Cody posted this week’s Lawfare Podcast, which showcased a discussion between Ben, Laura Donohue, Michael Hayden, and Robin Simcox on the future of surveillance reform in a post-Snowden world.

Stewart Baker shared 85th episode of the Steptoe Cyberlaw Podcast, which also included an interview with General Michael Hayden, former Director of the National Security Agency and of the Central Intelligence Agency. General Hayden discussed his views on encryption and the recent ECJ Safe Harbor decision. In the recent Cyberlaw news, Stewart covers the ECJ’s decision and the Article 29 Working Party press release on the decision.

And Ben brought us this week's episode of Rational Security:

Cody shared the video from a Q&A with European Data Protection Supervisor Giovanni Buttarelli on the state of play following the ECJ’s decisions in Schrems v. Data Protection Commissioner and the options available to companies in the wake of the decision. Tim Edgar also explored the potential mechanisms of redress for European Union citizens regarding U.S. data collection and suggests that extending Privacy Act rights to non-U.S. persons is not enough. He concludes that “it will take more fundamental – and much more difficult – changes to surveillance law to address the EU’s concerns about redress.” He then explained how standing issues complicate the United States’ potential to accommodate European demands for judicial redress for data collection.

Despite the recent agreement between Presidents Barack Obama and Xi Jinping, Paul Rosenzweig asked if China was already cheating, highlighting reports that Chinese government hackers have infiltrated networks of U.S. companies in recent weeks.

Peter Margulies discussed the DOJ’s push to use “all tools” to counter non-state threats to cyber and national security, reflecting on remarks made by Assistant Attorneys General John Carlin and Leslie Caldwell at Roger Williams’ Cybersecurity conference last week. The two attorneys considered the U.S.-China agreement and the recent arrest of a Kosovar hacker, who shared personal details about U.S. military personnel with ISIS. According to Margulies, “the key virtue, Caldwell and Carlin suggested, was openness to using a range of tools” to counter security threats. 

Herb Lin looked into claims that the Computer Fraud and Abuse Act would prevent law enforcement from legally hacking back as part of an authorized investigation into the person “responsible for a cyberattack against the United States.”

Herb also discussed the U.S. Department of Transportation’s plans to require drone registration from all drone purchasers and argued that such measures could be used to make drone operation safer. He suggested that drones could be deactivated by airplanes flying within their vicinity. Upon reflecting on some of the difficulties associated with this idea, he followed up this approach by discussing the possibility of enforcing no-fly zones around “sensitive areas” so as to decrease the chances of dangerous interaction between two aircraft. Ben linked to a debate between Christine Fair and Glenn Greenwald on the effectiveness of the U.S. drone program.

Responding to a New York Times story about Iran’s testing of a long-range ballistic missile, Yishai Schwartz explained why the Iranian test was not a violation of the JCPOA. He points out that “JCPOA was deliberately negotiated so as to exclude any Iranian commitments on its missiles program.” He then distinguishes the JCPOA from a Security Council resolution, UNSCR 2231, which also does not necessarily prohibit missile testing before suggesting that “the launch is a clear and unambiguous violation of an earlier Security Council resolution, [the 2010] UNSCR 1929.”

Ellen Scholl introduced Hot Commodities, a new Lawfare feature containing a roundup of news and analysis of energy and security issues. She shed light on the growing crisis in the Saudi regime caused by low oil prices and regional instability, the Islamic State’s ability to profit off of energy, and developments in the Turko-Russian relations among other topics.

Adam Klein and Mira Rapp-Hooper looked at three complicating aspects of the planned U.S. freedom of navigation operations in the Spratly Islands and told us how to interpret the upcoming operations. They concluded that the planned U.S. operations will ultimately send China a message about the U.S. interpretation of UNCLOS, an interpretation largely shared within the international community. In the latest Water Wars, Zack Bluestone noted that U.S.-Chinese rhetoric over the South China Sea became less hostile over the course of the week and that the much anticipated ruling in the Philippines v. PRC case has yet to occur.

Ingrid Wuerth highlighted the foreign relations and national security cases on the Supreme Court's October Docket. Foreshadowing an “interesting term,” she concludes that “these grants and pending petitions suggest that the Court will continue its recent focus on FSIA cases, extraterritoriality, and separation of powers.”

And David Ryan analyzed the D.C. Circuit's decision Friday in Meshal v. Higgenbotham, an important Bivens case holding that "a plaintiff cannot state a cause of action under Bivens for alleged constitutional violations that occur during a terrorism investigation in a foreign country."

Finally, it’s been a week since Wells Bennett's last day, and suffice it to say, he is missed in the office. Ben shared a note of appreciation of Wells Bennett, who as of Monday had left his post as Managing Editor of Lawfare to start a new job. Ben says it best: “anyone who reads this site regularly and finds it useful owes Wells a debt of gratitude.”

And that was the week that was.