The Week That Was

The Week That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, November 14, 2015, 8:18 AM

Bobby alerted us last night to the horrifying series of attacks that occurred across Paris on Friday evening. A series of explosions and armed attacks left at least 128 dead across the city and injured hundreds of others. We keep France in our thoughts, as we review this week's Lawfare coverage.

Ben posted the Incubus of Plague" edition of Rational Security. In it, the Rational Security crew pull a leaf from CNN’s book and discuss the Russian plane crash in the Sinai, the latest in the GOP candidates’ foreign policy plans, and the latest from the White House on closing Guantanamo Bay.

Aaron Zelin shared this week's Jihadology Podcast, which features C. Christine Fair in a discussion on the islamist militancy in Bangladesh. The two covered topics including the history of Islamism in Bangladesh, the intersection of Islamism with mainstream politics, al Qaeda’s involvement in the country, and the recent Islamic State attacks in the country, among other topics.

David Bosco asked how a potential International Criminal Court investigation into crimes committed in the occupied territories could alter the U.N. Security Council's role in determining the future of the Israeli-Palestinian peace process. He suggested that an ICC investigation could lead to an indictment of Israelis or Palestinians, which would likely change the nature of UNSC diplomacy.

In this week’s Foreign Policy Essay, Sarah Yerkes examined the “unintended consequences of media crackdowns in the Middle East and North Africa.” She broke down what media crackdowns look like in the Arab world before considering how Arab leaders continue to miscalculate the backlash generated by media repression.

Amira Mikhail took a look at Egypt's pretrial detention laws and the confusion surrounding them. Highlighting some of Egypt's latest arrests of journalists and activists in its war on dissent, she suggested that “without some form of a limiting legal principle, the law will become—indeed, has become—nothing more than an instrument of arbitrary repression.”

Matt Waxman shared his review in Time of Charlie Savage’s new book, Power Wars, writing that “the story strongly implies that mainstream American politics don’t support fundamental rethinking of counterterrorism policies.” Jack also reviewed Power Wars. In his review, Jack wrote that Savage’s book focuses on “internal deliberations among Obama administration lawyers and national security officials about the ‘war on terrorism’” while ultimately suggesting that “law has not been terribly consequential in restraining large national security initiatives that the President deems important and that are ‘not laughably off the wall’ from a legal perspective.” John Bellinger also discussed Power Wars. He argued that Savage overstates the decline of the NSC “lawyers group” during the Bush administration. David Kris responded to Bobby's discussion of Charlie Savage's treatment of transit authority.

Ken Anderson highlighted Linda L. Fowler’s new book Watchdogs on the Hill: The Decline of Congressional Oversight of U.S. Foreign Relations, in which Fowler “studies the frequency and content of formal oversight hearings by the Senate Armed Services and Foreign Relations committees from the mid-20th century to the present” to ultimately suggest a decline in congressional oversight on these issues. He also reviewed Law, Science, Liberalism and the American Way of Warfare: The Quest for Humanity in Conflict, by Stephanie Carvin and Michael John Williams. The book sheds light on how scientists and lawyers have shaped American warfare. Ken suggested that the book “ is focused on a strategic climate that has changed significantly,” given the rise of ISIS among other recent global developments.

Jack looked at the precedent set by Zivotofsky II as it related to executive power. In considering the the Court’s analysis of independent and exclusive Executive power, he predicted that the case would expand executive power.

Cody linked to a bipartisan letter signed by 35 U.S. House representatives calling on Speaker Paul Ryan (R-WI) to schedule a vote on an Authorization for the Use of Military Force (AUMF) against the Islamic State. The letter comes a week after President Obama announced the deployment of 50 special operations forces to assist Kurdish efforts against ISIS.

As lawmakers continue to stymie President Obama’s efforts to close U.S. detention facilities at Guantanamo Bay, Ben argued that if push comes to shove, a decision to close the site without consulting Congress “would be a bold assertion of executive authority.” Ben also considered the health of recently released Guantanamo Bay prisoner Shaker Aamer after photos of and articles about him show him looking to be in good spirits and make little mention of poor health.

Robert Loeb and David Ryan wrote about the former CIA detainees who are suing CIA contractors for alleged torture under the Alien Tort Statute. In addition to examining the plaintiffs’ complaint which highlights “‘Torture and Other Cruel, Inhuman, and Degrading Treatment’; ‘Non-Consensual Human Experimentation’; and ‘War Crimes,’” they took a look at past rulings involving the Alien Tort Statute and considered potential responses of the defendants.

With the National Defense Authorization Act now passed, Bobby considered the cyber-provisions featured in the act. He also took a look at how the "bill revives the EMP Commission (the 'Commission to Assess the Threat to the United States from Electromagnetic Pulse Attack'), which previously had a run from 2001 to 2008."

Stewart Baker posted the 88th episode of the Steptoe Cyberlaw Podcast, which featured an interview with Adam Kozy and Johannes Gilger of Crowdstrike. The three discussed China's Great Cannon and the Chinese injection of malware into 2 percent of all computers whose queries cross into Chinese territory among other cyber subjects.

Tim Edgar provided his final thoughts on reforming surveillance and European privacy rules in light of the European Court of Justice’s ruling in Schrems v. Data Protection Commissioner. Reflecting on the ubiquity of reforms necessary for countries doing business within the EU, he ended by saying that “there is no escaping the global logic of Schrems.”

Ken Anderson highlighted a new way to attack the internet: “physical cables have particular points of vulnerability - the ‘throughways and junctures’ that handle vast quantities of Internet traffic.” He indicated two strategies for possible combatting these vulnerabilities: “one is to increase security at the critical junctures” while the “other is to disperse the system far more than it is now.” He also commented on Jennifer Daskal’s paper on “The Un-Territoriality of Data,” a paper which he suggested “opens up a large debate with enormous implications in the practical legal and policy worlds of domestic law and cross-border law.”

Cody shared Judge Richard Leon’s Monday opinion issuing an order of injunction against the NSA’s bulk metadata collection program in Klayman v. Obama. Ben shed light on the legal wrangling over Section 215 following Judge Leon’s ruling. With NSA’s collection program under Section 215 set to wind down by November 29th, he also posted the D.C. Circuit Court of Appeal’s stay issued in response to Judge Leon’s ruling and guessed “that the D.C. Circuit will find a way—as it most certainly should—to let the clock run down so that the process Congress put in place for winding this program down can play out as intended.”

In the latest edition of Water Wars, Zack Bluestone wrote that China “hopes to stave off further setbacks in the South China Sea through a diplomatic blitzkrieg,” citing recent Chinese diplomatic missions to Vietnam, Singapore (and Taiwan), and the Philippines. As challenges to Chinese claims in the area continue, David Bosco asked if we could be "witnessing a legal cascade in the South China Sea," as Indonesia considers legally challenging Chinese claims in the region. Following the Philippines’ victory in the Permanent Court of Justice’s ruling that it had the jurisdiction to hear the Philippines’ challenge against Chinese claims, an Indonesian challenge “would almost certainly take the form of binding arbitration, which is the mechanism provided for in the UN Convention on the Law of the Sea (UNCLOS).”

Finally, Cody shared the latest Lawfare Podcast, which features Caroline Krass, Ben Wittes, Orin Kerr, and Kenneth Wainstein in a discussion on bridging 20th century law and 21st century intelligence. Convened at an event co-hosted by George Washington University and the CIA entitled Ethos and Profession of Intelligence, the panel considered the legal questions being raised by rapidly evolving technologies and their interaction with existing national security law. They also explored how the United States can strike a “balance between privacy, security and the economic imperatives driving innovation” among other topics.

And that was the week that was.