The Week That Was

The Week That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, October 31, 2015, 9:48 AM

Bobby discussed the recent White House decision to deploy special operations forces to Syria and asked how the decision fits into the larger discussion surrounding the evolving U.S. combat roles abroad.

As questions have surfaced concerning the U.S. combat role in Iraq following the joint U.S.-Kurdish operation which left one American serviceman dead, Bobby also considered the role of U.S. ground forces is in fight against the Islamic State. Considering Defense Secretary Ashton Carter’s comments following the incident, he concluded that the “U.S. ground forces do have something akin to a direct ground combat role” and ability to use force in assistance to Iraqi and Kurdish allies in combat situations and in specific solo-raids. He considered whether there will be “an increased operational tempo of raids that emphasize Kurdish (or Iraqi) personnel but also feature not just U.S. air support but also U.S. personnel directly engaged in the fighting under color of the self-defense rationale.”

Dustin Lewis, Naz Modirzadeh, and Gabriella Blum considered the series of hospitals that have been bombed in Afghanistan, Syria, and Yemen in recent days. They argue that the international humanitarian law that has protected medical staff and facilities since 1864 should not be abandoned simply due to states’ changing perception of what qualifies as impermissible support to terrorists.

In light of Charlie Savage’s article in the New York Times which sheds light on the deliberations and legal memos leading up to the raid on Osama bin Laden’s compound in Pakistan, Jack explored the decline of Office of Legal Counsel and considered some reasons why neither the Attorney General nor the OLC were consulted on the raid.

With more than 500,000 refugees recently entering Europe, Daniel Byman asked whether Syrian refugees pose a potential terrorism threat in this week's Foreign Policy Essay. He argues that “concerns about terrorism and the refugees are legitimate, but the fears being voiced are usually exaggerated and the concerns raised often the wrong ones,” suggesting that the risk of radicalization would increase if refugees were not integrated into their host communities.

Ryan Scoville asked how American courts ascertain customary international law. Despite the established doctrine "that custom arises from general and consistent state practice that is backed by a sense of legal obligation," he argues that federal courts do not appear to follow the doctrine and have instead “focused overwhelmingly on the United States and, to a lesser degree, other parts of the West.”

Coverage of the 9/11 military commission trial continued as Zack Bluestone summarized the Sunday session in which only one defendant was present, prompting the judge to consider whether the other detainees had waived their right to be present. Among other issues discussed, the hearing focused on "potential conflict of interest for the defense teams based on a government investigation of their conduct related to communications with a foreign national.” Yishai Schwartz covered the 10/26 motions in which the question of conflict is discussed. Francesca Procaccini discussed the 10/28 proceedings which largely focused on Walid Bin Attash’s right to replace his counsel and pro se representation.

Reflecting on Shaker Aamer’s release from Guantanamo Bay, Ben speculated that Aamer was, in fact, “part of enemy forces and lawfully subject to detention” and that his release was precipitated by the desire of a U.S. ally which prompted “compelling diplomatic reasons to resolve his case without holding him longer than is strictly necessary.” Quinta shared the press statements on Aamer’s release and that of another Guantanamo detainee.

Responding to arguments in favor of closing Guantanamo Bay’s detention facility, Jack argued that proponents of closing the facility make a weak case for the unconstitutionality of detainee transfer restrictions. Ingrid Wuerth also discussed the “constitutionality of congressional restrictions on the transfer of prisoners,” arguing that the Captures Clause of the Constitution does not give Congress the authority to regulate the treatment of prisoners captured in war.

David Ryan updated us on the ongoing litigation in Dhiab v. Obama, reporting that Judge Gladys Kessler denied the government’s motion to reconsider her order to unseal classified videotapes of force-feeding at Guantanamo Bay as she suggested that “the government had failed to meet the legal standards for granting a motion for reconsideration.” He added that the DOJ will have another opportunity to push for the tapes’ release as it is “virtually certain her ruling will be reviewed by the D.C. Circuit.”

C. Christine Fair reflected on her recent debate with Glenn Greenwald on Al Jazeera and responded to his arguments about the U.S. use of drones. She pointed out what she considered to be several of the discrepancies between Greenwald’s discourse and the realities of the drone program in Pakistan.

David Ryan highlighted the DOJ victory in the D.C. Circuit’s decision in Meshal v. Higgenbotham which held that a plaintiff cannot invoke Bivens for an alleged constitutional violation that occurred during a terrorism investigation abroad. Discussing Meshal’s complaint against federal agents under Bivens was dismissed as his claim “involved a criminal terrorism investigation that implicated national security concerns” and “would require the extraterritorial application of the U.S. Constitution’s protections.”

Nicholas Weaver shared the second edition of the Nusra Front’s “purported English-language magazine,” which features “some spectacularly bad computer security advice provided by the ‘Global Islamic Media Front.’” Despite the questionable advice, he argues that the it “shows the difficulties faced by those attempting to evade the full attention of the modern surveillance state.”

Aaron Zelin posted the latest Jihadology Podcast, which featured Mokhtar Awad. The two discussed jihadism in Egypt, the rise of jihadism in the Sinai before the uprising in 2011, the activities of jihadis between 2011 and 2013, and the Jama’at Ansar Bayt al-Maqdis among other topics.

Ben posted the latest Lawfare Podcast, featuring Will McCants and Joby Warrick as they discussed the past and future of ISIS at the very first Hoover Book Soiree. The next Hoover Book Soiree will take place on the evening of November 10 and will feature Jack interviewing the New York Times's Charlie Savage on his upcoming book: Power Wars: Inside Obama's Post-9/11 Presidency.

Quinta covered the latest developments in the ongoing EDNY encryption case which concerns the government’s request for a judicial order, under the authority of the All Writs Act, requiring Apple to decrypt a secured iPhone for the purposes of an ongoing law enforcement investigation. She summarized the recently filed briefs by both Apple and DOJ. She also discussed Monday’s hearing in which the judge expressed skepticism of "the government's prospective use of the All Writs Act in this case, regarding it as a dramatic expansion of the Act’s grant of power." The judge also questioned Apple’s reversal of its traditional cooperation with law enforcement investigations.

Joel Brenner invited U.S. law students to shape privacy law by bringing suit against a European government and alleging that said government is violating their rights through its surveillance operations in order to expose, what he calls, European hypocrisy.

Tim Edgar examined the issue of standing as a barrier to challenging U.S. surveillance activities and how that challenge is changing. He suggested that Clapper v. Amnesty International "opened a wide gulf between what international human rights law provides – a broad right to challenge surveillance – and the Supreme Court’s narrow understanding of standing."

Quinta shared the Second Circuit’s decision to deny injunctive relief against Section 215 bulk collection of metadata in ACLU v. Clapper. The court also declined to consider the question of whether bulk collection of metadata violated the Fourth Amendment.

Paul Rosenzweig informed us to the Senate's vote to pass the Cybersecurity Information Sharing Act (CISA).

Stewart Baker posted the 86th episode of the Steptoe Cyberlaw Podcast, which features an interview with Mikko Hypponen, Chief Research Officer at F-Secure and general computer security expert. The two discussed the targets and tactics Russian government cyberspies and do a damage assessment of the ECJ's Safe Harbor smackdown. Stewart also took a look at the pending amendments to the recently passed CISA.

In light of the United States’ recent freedom of navigation exercise in the South China Sea, Adam Klein and Mira Rapp-Hooper asked what the United States signaled by sailing within twelve nautical miles of China’s artificially constructed island. They suggest that the operation indicates a U.S. rejection of China’s territorial claim and predict that the operation “marks the beginning of more regular navigational assertions in the South China Sea.”

Paul Rosenzweig highlighted the ruling which granted an arbitration court in the Hague jurisdiction to hear the Philippines’ claim against China over disputed territorial claims in the South China Sea.

Carrie Cordero wrote about the Director of National Intelligence's new Principles of Intelligence Transparency Implementation Plan. Carrie points out that the plan states that "transparency includes not only sharing information about the rules that apply to the IC and its compliance under those rules, but also sharing information about what the IC actually does in pursuit of its national security mission."

Finally, Ben reviewed David Hoffman’s The Billion Dollar Spy: A True Story of Cold War Espionage and Betrayal which tells the story of Adolf Tolkachev, a Russian spy for the CIA Moscow station in the late 1970s. The book sheds light on a "largely unknown but hugely consequential and successful espionage operation," and Ben lauds it as the “best non-fiction portrayals of human intelligence collection [he has] ever read.”

And that was the week that was.