The Week That Was

The Week That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, November 21, 2015, 8:26 AM

This week, Lawfare introduced Susan Hennessey as its new managing editor. Please join us in welcoming her (back) to the Lawfare team, and follow her on Twitter!

Following last week’s attacks in Paris, Ken Anderson expressed solidarity with France by sharing excerpts from the wartime diary of René Char, a poet and member of the French Resistance during the Second World War.

Timothy Edgar suggested that France needs a 9/11 Commission-style investigation, citing the lack of critical intelligence on the coordinated attacks. Pointing to the 9/11 Commission’s recommendations for improving security and intelligence within the United States, he called for a “sober and objective investigation” of the events in France and offered suggestions for what such an investigation might look like.

Daniel Severson looked at France’s state of emergency and the expansion of French police powers in light of the attacks in Paris. He wrote that “although the state of emergency authorizes exceptionally broad police powers, it remains to be seen to what extent the French government invokes them and how if at all such powers may change France’s legal regime.”

Ben shared the “Anybody Got Any Bright Ideas?” edition of Rational Security, in which the Rational Security crew considers the Islamic State’s evolution in light of the recent ISIS attacks in Turkey, Egypt, Lebanon, and France. They also consider the crypto wars rekindled by the attacks on Paris and the treatment of refugees by U.S. politicians.

Jack looked at how the Paris attacks could increase President Obama’s domestic war powers authority under Article II. He argued that the President should seek congressional approval should he decide to increase the use of force against the Islamic States following the Paris attacks. Jack also considered President Obama’s national security legacy after Paris and asked “whether he will be seen to have contributed to, and done too little to redress, the threats from the Islamic State.”

Bobby took a look at the nature of armed conflict between the United States and ISIS, reflecting on the questions of “whether any such conflict applies without geographic limitation, and whether any such conflict applies to related organizations under the rubric of ‘associated forces.’” Also, as Russian officials confirmed that a bomb brought down the Russian jetliner that crashed over the Sinai, Ingrid Wuerth described the international legal implications of Russia’s involvement in the fight against ISIS.

Ashley Deeks asked if France will turn to international institutions in response to the attacks. Considering the role that NATO and the U.N. played following the 9/11 attacks, she examines how France might use international organizations in its response to the Paris attacks.

Aaron Zelin posted an emergency Jihadology Podcast, featuring a conversation with Timothy Holman on the history of French and Belgian jihadi networks and the background to the Paris attacks. They touched upon the repurposing of those jihadi networks depending on political contexts and external conflicts, the legacy of these networks following the war in Iraq, and how Paris fit into a larger pattern of attacks in France.

Bobby reflected on the impact of Anonymous’s war on ISIS’s online activities in the wake of Paris. As the group has already taken down over 5,000 accounts associated with the militant group, he pointed to “how private actors are able, thanks to technological change, to become involved in decisions and activities that might otherwise have been the exclusive or near-exclusive province of government entities” and asked what impact Anonymous's activity could have on intelligence gathering. Paul Rosenzweig asked how social media providers could be compelled to take down terrorist-related accounts and argued that the Digital Millennium Copyright Act (DMCA) could be adapted to help rid sites like Twitter of terrorist speech.

Ben asked about the role encryption played in the Paris attacks. As speculation surrounded the initial circumstances of the attack, Ben suggested that commentators should “wait until we know something real about the attackers' use of encryption before commenting on what, if anything, it means for the ‘going dark’ debate—not to mention what means, if anything, for Snowden's personal blameworthiness.” Adding to Ben’s piece, Herb Lin shared a few lessons from the Paris attacks on encryption and lawful hacking. He took a look at how “government authorities could target the communications of a set of specific individuals using technical means” in what is sometimes termed the “lawful hacking approach.”

In suggesting that "the modern world is a virtual panopticon, a surveillance state which records huge quantities of data about our every action and provides an easily retrievable metadata record of our movements, our contacts, our purchases, and our activities,” Nicholas Weaver wrote on the limits of that panopticon in reference to the Paris attacks.

The Paris attacks have generated waves of controversy surrounding the issue of Syrian refugees within political arenas. Ben defended refugees by arguing that there are both moral and strategic reasons to accept the hundreds of thousands of people fleeing ISIS and Assad. Following GOP presidential candidate Ben Carson’s comparison of Syrian refugees to “rabid dogs,” Ben also shed light on some of the faces of the refugee being attacked by politicians, using photographs by Laura Dean. Paul Rosenzweig linked to Senator Rand Paul’s (R-KY) amendment excluding Syrian refugees and those from 33 other countries, which Paul says “speaks for itself.” Steve Vladeck outlined the legal issues at play in the declarations made by several governors that they would not accept Syrian refugees into their states.

Ben linked to remarks from CIA Director John Brennan at CSIS.

Elina highlighted the relevant national security discussions from Saturday’s Democratic presidential primary debate, in which CBS shifted focus to discuss issues of national security and foreign relations in light of the Paris attacks.

As the closure of Guantanamo Bay continues to be a hot topic, Jack pondered the significance of assertion made by Attorney General Loretta Lynch that the law does not allow for the transfer of Guantanamo detainees to the United States on closure Guantanamo Bay. He suggested that the “real significance of Lynch’s remarks, however, is that apparently no one in the White House has even raised the question of the constitutionality of the relocation restrictions with DOJ or OLC.” Ben noted that the Pentagon transferred five more Yemeni detainees from Guantanamo Bay.

Cody highlighted the sections related to commercial cyberespionage and hacking in the 2015 G20 Leaders' Communiqué. He added that the thrust of the provisions are largely “aimed at addressing commercial cyberespionage — in particular Chinese cyberespionage — and not intelligence or law enforcement activity.”

Fergus Hanson discussed the norms of cyber war in peacetime in the latest Foreign Policy Essay. He wrote that the “proliferation of capability has brought us into a new era where serious damage can be done, requiring thoughtful international norms to prevent miscalculation.”

Stewart Baker linked to Episode #89 of the Steptoe Cyberlaw Podcast. This episode features an interview with Mark Shuttleworth, founder of Thawte and Canonical/Ubuntu, discussing encryption and intelligence.

Cody shared the latest edition of the Lawfare Podcast, which features a conversation between Ben and Assistant Attorney General for National Security John Carlin at the Atlantic Council. The two discussed recent changes in Carlin’s division of the Justice Department and the U.S. government’s ongoing efforts to thwart cyber threats.

Ken Anderson reviewed Cyberwar: Law and Ethics for Virtual Conflicts and suggested that the edited volume “will continue to have a shelf life so long as the basic conceptual, moral, and legal categories of cyberwar are contested issues.” He also reviewed David Bosco's 2014 book, Rough Justice: The International Criminal Court in a World of Power Politics. He writes that what sets Rough Justice apart from other work written on the “ICC and international criminal law and tribunals is its straight-up willingness to examine the ICC as a political as well as legal institution, and a legal institution that exists within the world of great power politics.

Ben and Jack invited all to the third Hoover Book Soiree, which will feature a discussion between Ben and Edward Lucas of the Economist focusing on Lucas’ new book, Cyberphobia: Identity, Trust, Security and the Internet. The event will be on December 2 between 5 pm and 7 pm.

Following Charlie Savage’s revelation that the N.S.A. created a functional equivalent to bulk collection of Americans' internet metadata after the program was shut down in December 2011, Timothy Edgar suggested that “bulk collection of Internet metadata raises serious privacy concerns” and that the revelation “shows the complete incoherence of surveillance law.”

Raul “Pete” Pedrozo and James Kraska argued that the legal implications of the recent U.S. Navy’s freedom of navigation exercises in the South China Sea remain inexplicable. They argue that the “United States has been unable to synchronize successful air and sea freedom of navigation (FON) operations in the South China Sea with an erratic diplomatic message and a legal case that is too clever by half.” Zack Bluestone posted the latest edition of Water Wars, in which he sheds light on the maritime disputes in the South and East China Seas featured prominently during the G-20 summit in Turkey, the Asia-Pacific Economic Cooperation (APEC) Forum in the Philippines, and the ASEAN Summit in Malaysia.

Ellen Scholl shared the latest Hot Commodities, in which she shed light on how energy helps finance the Islamic State, the COP 21 Climate Conference, the European Commission's recent State of the Energy Union report, and the International Energy Agency's 2015 World Energy Outlook among other subjects.

Finally, calling on Senators to put politics aside, John Bellinger argued that the Senate should act now to confirm Brian Egan as State Department Legal Adviser.

And that was the week that was.