The Week That Was

The Week That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, November 7, 2015, 8:47 AM

After last week’s U.S. Naval patrol near China’s claimed Subi Reef in the South China Sea, several Lawfare authors considered the implications of the operation. Asking how far the United States went with the freedom of navigation operation, David Bosco pointed out that the operation raised questions about both “the traditional U.S. interpretation of the right of innocent passage (even by warships) through territorial waters” and whether or not artificially constructed islands like the Subi Reef can are entitled to territorial water claims. He suggested that the “United States may be choosing to leave the scope of its challenge to Chinese claims ambiguous.”

Adam Klein and Mira Rapp-Hooper noted the lack of clarity concerning whether or not the U.S. operation constituted innocent passage pose problems for U.S. foreign policy and for international law. They urged the Pentagon to clarify what precisely occurred during the naval patrol and what message the maneuver intended to send as perceived innocent passage could be “damaging for the future development of international maritime law.” In attempting to answer "the innocent passage mystery," they confirmed that the U.S. Lassen's passage was consistent with innocent passage and further theorize on the ship’s operations.

Julian Ku argued that if the United States did, in fact, conduct innocent passage in the South China Sea, it may have actually “strengthened China’s sketchy territorial claims” over the Subi Reef and other claimed Chinese islands. He asked why the United States would have pursued innocent passage if the intent of the operation was to challenge Chinese territorial claims.

Zack Bluestone posted the latest Water War, in which he shed light on more of the negative Chinese response to the U.S. naval patrol in the South China Sea. He also rounded up the recent developments in Water War related news, discussing other countries’ responses to developments in the South China Sea and Chinese expansionary trends as well as Xi Jinping’s visits to Vietnam and Hanoi.

Matthew Dahl asked what effect Chinese military reorganization could have on the recent cyber agreement between the United States and China. He pointed out that the agreement did not prohibit cyber espionage in national security intelligence gathering capacities

Ben posted the “Did You Miss Us” edition of Rational Security, in which the Rational Security crew discusses President Obama’s decision to send special forces to Syria, the anniversary of Yitzhak Rabin’s assassination, and C. Christine Fair’s debate over drone use with Glenn Greenwald, among other topics.

In this week's Foreign Policy Essay, the National Defense University’s Denise Natali challenged the claim that now is the time for Kurdish independence and instead argues “that a deeper look into the Iraqi Kurdish trajectory reveals a more complicated and interrupted scenario defined by legal, economic, and geopolitical constraints.”

Reflecting on the Iran deal and the recent wave of anti-American sentiment that has come from the country in recent weeks, Jack suggested that the responsibility for the deal lies with President Obama and the deal’s supporters in Congress.

Cody shared the newest edition of the Lawfare Podcast, which features Marvin Kalb on “Putin’s Imperial Gamble.” Kalb discusses his latest book, Imperial Gamble: Putin, Ukraine, and the New Cold War, questioning whether recent Russian aggression is indicative of attempts to start a new Cold War or merely to bolster Putin’s macho personality.

Speaking of Putin’s macho projections, Ben posted the latest coverage of his martial arts challenge to Vladimir Putin: WBUR interviewed Ben for its program "Here & Now," while the Canadian Broadcasting Company also featured a segment on Ben’s challenge.

Ben shared the trendy, stylish “Support Assad!” shirts now being sold in Moscow.

Ellen Scholl shared the latest energy and security related news in Hot Commodities, shedding light on the Islamic State’s electricity supply, scorching temperatures in the Middle East, and the effect of record low crude prices in Venezuela. She also tells us to watch for the effect that the recent electoral victory of the Poland’s right wing party could have on European energy and climate policies, the possible rechauffement of conflict between Azerbaijan and Armenia over Nagorno Karabakh, and the mounting tensions between Turkey and Armenia, as well as possible energy-related motives for China's expansionary tendencies in the South China Sea.

Herb Lin wrote on large-scale geoengineering, “attempts to modify the planetary system in such a way as to mitigate the effects of global warming,” and the potential threat that it poses to national security.

Cody provides a riveting summary of last Thursday’s 9/11 trial hearing, which addressed the question of whether Walid Bin Attash could fire his attorney among a series of other issues. With the last of the hearings over, Cody also linked to the Chief Prosecutor’s closing statement in this month’s military commission pre-trial hearings.

Ben provided the latest edition in his “correction column” for New York Times editorials, concerning the release of Shaker Aamer from Guantanamo Bay. And the, a bit embarrassed, he later corrected one of his own points before reemphasizing his other corrections.

Jack highlighted a new story by Charlie Savage on the debate within the Obama administration regarding executive power and the detention facility at Guantanamo Bay.

Jack and Ben invited you to the next Hoover Book Soiree in Washington, D.C, which will take place on November 10th. In the second Hoover Book Soiree, Jack will interview Charlie Savage about his new book, Power Wars: Inside Obama’s Post-9/11 Presidency.”

A Look At The Current Administration's Strategy For The War On Terror

Bobby highlighted Charlie Savage's discussion of the the NSA's "transit authority" in his new book. Bobby looked into what the Foreign Intelligence Surveillance Act did and did not cover, the effect of fiber-optic cables on FISA analysis, collection of foreign-to-foreign communication within the United States, and the growth of foreign-to-foreign communications available via transit-authority which accompanied the rise of online communications, and finally the post 9/11 developments at the NSA.

Jack added to his previous discussion of the decline of the Office of Legal Counsel as a source for advice on issues of national security within the Executive branch in light of Savage’s book. He also pointed to recent statements made by government officials which confirm his arguments about the OLC.

Robert Loeb and Matthew Weybrecht considered the Sixth Circuit's ruling in Mokdad v. Lynch, which held that district courts could hear a plaintiff’s challenge to suspected inclusion on the No Fly List. Paul Rosenzweig looked at the process behind the no-fly list and the revised procedures, under which "the government's view is that the final decision on whether or not a person is allowed to fly is no longer made by the FBI (which formerly was responsible for maintaining the TSC list) but rather by the TSA Administrator who now uses the data provided by TSC/FBI only as an input into his/her decision."

David Ryan shed light on the Ninth Circuit's en banc decision in the United States v. Dreyer case and its implications on the Posse Comitatus Act. Following the court’s ruling that “an NCIS agent’s use of a software query to search military and civilian computers throughout Washington state for child pornography violated restrictions related to the Posse Comitatus Act (PCA),” it “declined to suppress the evidence resulting from the agent’s investigation.”

Rachel Brand outlined the complexities inherent to achieving the right balance between transparency and secrecy in light of the ODNI’s newly released transparency implementation plan.

Ben shared the audio and video from the joint CIA-George Washington University conference on "The Ethos and Profession of Intelligence” in which he participated. The conference focused on the “technologies and social changes are altering the role of intelligence agencies in the 21st century and how those changes affect how agencies interact with policymakers, recruit and develop staff, protect civil liberties and build international partnerships.”

Aaron Zelin posted the latest Jihadology Podcast, which featured a discussion with Voice of America’s Harun Maruf looking into the Islamic State and al Shabab in Somalia. The podcast considers al Shabab’s state of play since the attacks on the Westgate Mall, al Shabab leader Ahmad Umar, and foreign fighters in Somalia among other subjects.

Amid geopolitical and economic instability in China, Paul Rosenzweig asked if Chinese bitcoin holders could be using the virtual currency as a hedge fund against economic instability and whether bitcoin prices could "even be a leading indicator for expectations about growing national security tensions."

Adam Klein looked at the issues at play in Spokeo v. Robbins and its far reaching implications for both privacy and cyber law. In considering the question of digital injury, he considered how the Supreme Court’s decision on the case could impact “Congress’s power to recognize new forms of digital injury and to provide a private remedy for them.”

Stewart Baker provided this week’s Steptoe Cyberlaw Podcast, featuring an interview with Ari Schwartz, former senior director for cybersecurity on the White House’s United States National Security Council Staff. Along with Alan Cohn, the two explored the impact of CISA, concluding that “the main value of the bill is that it frees some companies from aging privacy rules that prevented information sharing with groups that include the government” and “enables companies to monitor their networks without fear of liability under even older privacy laws preventing interception of communications without all parties’ consent.” As usual, the Steptoe crew also explores other cyber topics.

As U.K. lawmakers mull the proposed Draft Investigatory Powers Bill. Nicholas Weaver suggested the bill could represent the "triumph of the U.K. Surveillance State." He looks at the bill's effects on metadata, wiretaps, bulk warrants, and bulk personal datasets and concludes that “the world proposed by this bill makes Orwell’s telescreens seem comfortably quaint.”

Zachary K. Goldman and Ramesh Karri suggested that incidents like Volkswagen's manipulation of emissions test results reveals "a threat that is far more pernicious because it results in damage not only to the people immediately affected by it, but also to the bonds of trust between society and the institutions upon which we rely for many aspects of our lives." They argued for the need to create processes to not only “supervise the corporations, but also to reinforce the regulatory mechanisms that keep them in check.”

Kenneth Anderson and Matthew Waxman explored the ethical dilemmas for autonomous weapon systems and autonomous self-driving cars. They find similar dilemmas given “the possibility that the machine could make a decision according to an ethical calculus that a human would be quite unlikely to be able to perform in the moment of an accident.”

Last but not least, Cody invited you to intern with Lawfare. You should apply!

And that was the week that was.