The Week That Was

The Week That Was: All of Lawfare in One Post

By Elina Saxena
Saturday, December 12, 2015, 10:09 AM

Reflecting on President Obama's Sunday night address from the Oval Office, Bobby highlighted the President’s most interesting remarks on terrorism and the U.S. strategy against the Islamic State. Bobby pointed out that President Obama alluded to the “going dark” debate in suggesting that “there may be newfound White House interest in insisting upon government-industry dialogue” on the topic.

Jack considered the President’s request for Congress to authorize the use of military force against ISIS in order to “symbolize the nation’s seriousness about the conflict with” the group. While Jack does not expect an AUMF to emerge from Congress, he suggested that lawmakers vote on a single sentence that might satisfy President Obama’s call for unity without expanding or altering the power he currently claims. Jack also discussed Rep. Adam Schiff (D-CA)’s "good" draft for an ISIS AUMF. Schiff’s AUMF would authorize force against al Qaeda, the Taliban, ISIS, and other associated forces and would have a three year sunset period that would force Congress to revisit the issue. As more lawmakers draft yet more AUMFs, Jack wrote that there is a “core consensus that the President’s authorities to use force should continue against al Qaeda, the Taliban, and ISIL.”

Fernando Tesón argued that, contrary to Michael Walzer's claim, the war against ISIS is just. He pointed to “ the right of humanitarian intervention aimed at saving the populations in Syria and Iraq that are presently victimized by ISIS” as well as “the right of self-defense in response to ISIS’s attacks elsewhere” as reasons why the war is just. Tesón also outlined how the coalition should approach the fight.

Bobby noted that the Pentagon has confirmed that a U.S. military strike in Libya killed the ISIS leader in the country and that another strike in Somalia last week killed al Shabaab leader Abdirahman Sandhere.

Aaron Zelin shared the Jihadology Podcast, in which Lorenzo Vidino and Seamus Hughes discuss their new report, ISIS in America: From Retweets to Raqqa. On the podcast, they provide a background on the American jihadi scene, take a look at the demographics of Americans who have defected to ISIS, and consider the roles that American supporters of ISIS play on social media.

Bobby suggested that the Pentagon plan to create a series of global bases to coordinate counterterrorism operations is nothing new. Instead, he posited that the plan might shed light on “internal debates the administration is now having, predictably, with respect to the organizational scope of the armed conflict with ISIS.”

Ben shared the “Irrational Security” edition of Rational Security. Susan joined the Rational Security crew again as they discussed, among other topics, the latest from Donald Trump and Secretary of State John Kerry's frustrations with the Middle East peace process.

John Bellinger argued that Trump is a danger to U.S. national security. He wrote that Trump’s statements against Muslims “contribute to fear and unrest at home and unsettle our friends and allies abroad.” Ben pondered how long it would take before Trump’s anti-Muslim rhetoric makes his own buildings ISIS targets and asked whether Trump had an obligation towards those who live and work in his buildings.

Ben also contrasted Donald Trump’s latest proposal to bar Muslims from entering the United States with Mai El-Sadany’s piece on being an American Muslim these days. Ben argued that it is “particularly important for those of us who favor more, rather than less, robust counterterrorism tools to take an uncompromisingly strong position about” the dangerous sort of rhetoric espoused by the likes of Trump in order to prevent counterterror tools from falling into dangerous hands. Ben added that one does not “have to mix in very much bigotry and hatred and stupidity before the brew [...] becomes irredeemably toxic.”

In a similar vein, Nick Weaver considered how to best test support for new surveillance authorities. His answer: what would Donald Trump do with them?

After the FBI announced that they were investigating the San Bernardino shooting as an act of terror, Susan analyzed “how federal and state laws treat various perpetrators of ideologically-motivated violence.” She also asked whether there is a disconnect between popular and legal definitions of terrorism. Susan then responded to a piece from Marcy Wheeler and took a look at WMD charges in white ideological violence.

Ashley Deeks asked how states' intelligence agencies must approach their obligations under international law. She argued that the competing approaches taken by various intelligence agencies “reveal distinct domestic legal regimes, interpretive mechanisms, policy rationales, and effects on the contents of international legal norms.”

Cody updated us on the latest from Bowe Bergdahl. The House Armed Services Committee released a report on its inquiry into the Bergdahl swap while the second season of NPR’s podcast Serial covers Bergdahl’s case.

Ben shared Military Commissions Chief Prosecutor Mark Martin’s statement in advance of this week’s pre-trial hearings in the 9/11 case. He went on to summarize the happenings of Tuesday’s morning and afternoon sessions in which the commission discussed the issue of female guards in the detention facility. He also shared the ongoings of Wednesday’s morning session, which “never gets past the opening formalities of verifying that the defendants are all present or, if not, voluntarily waiving their right to be present.”

Amy Zegart argued that Senate Intelligence Committee's torture report is “full of noble motives and tragic flaws” which significantly diminish its impact. She added that “the investigation also committed a number of unforced errors that offer a cautionary tale for intelligence oversight.”

David Bosco asked what the International Criminal Court thinks of America's torture investigations in light of a Human Rights Watch report that calls upon the U.S. government to provide accountability for its controversial detention and interrogation practices.

Timothy Edgar shared his summary of Charlie Savage’s latest book, Power Wars, in 100 tweets for those of us whose “attention span has been wrecked by the Internet.”

Cody posted this week’s Lawfare Podcast which features Natan Sachs, a Fellow in Foreign Policy at the Brookings Institution, in a discussion with Ben concerning anti-solutionism as strategy in the Israel-Palestine conflict. On the podcast, Sachs argues that the absence of a long term strategy to deal with the Israel-Palestine conflict is a representation of the Israeli right's belief that there is no solution to the set of challenges currently facing Israel.

Lawrence Rubin shed light on the the Northern Branch of the Islamic Movement and why Israel outlawed the group. Suggesting that the decision was based on political reasons in addition to security reasons, he wrote that the Israeli government should work to neutralize the group’s appeal and undermine their narrative.

Paul Rosenzweig argued that the reorganization of the National Protection and Programs Directorate in the Department of Homeland Security finally recognizes the convergence between physical and cyber security. As “form should follow function,” Paul suggested that this recognition and reorganization is wise.

Ben alerted us to the European Court of Human Rights’ opinion in Roman Zakharov v. Russia, which Marko Milanovic at EJIL: Talk! says finds “serious and systematic faults with the Russian legislative framework regulating the surveillance of mobile communications.” Ben pointed to the deficiencies in Russian surveillance law and practice as found by the court and enumerated by Milanovic.

Nicholas Weaver explained the dangers of targeting default security settings in technological systems. Instead of pushing for “back door” access to encrypted systems, FBI Director James Comey has recently shifted to targeting secure-by-default systems. Responding to this, Weaver says that taking aim at default security could lead to “informational mugging” and would not prevent terrorists and other sophisticated actors from using other secure systems.

Andrew Woods and Jen Daskal responded to questions raised by Greg Nojeim on cross-border data requests and explained why the framework they put forth in their initial proposal to reform law enforcement demands for communications content across borders “would enhance online privacy protections, particularly as compared to the status quo.” In a second response to the Daskal-Woods proposal, Greg Nojeim argued why the proposal framework should account for cross-border law enforcement demands for metadata as well.

Elaine Korzak highlighted a U.N. resolution that mandates the creation of a Group of Governmental Experts to study potential threats and responses to information security—the fifth of its type to be created since 1998. She noted that this year’s resolution employs stronger language and “calls upon” member states “to be guided in their use of information and communications technologies by the 2015 report.”

Paul Rosenzweig provided the latest Bits and Bytes roundup. In the roundup, Paul included the alleged Bitcoin arrest, the new EU cybersecurity law which would require online firms to report serious breaches, and shared news regarding an attack on DNS servers.

Stewart Baker shared the 92nd episode of the Steptoe Cyberlaw Podcast. On the podcast, the Washington Post’s Ellen Nakashima and Tony Cole, Global Government CTO with FireEye, discuss whether the PLA’s cyberespionage has stopped and whether or not it really even matters.

Julian Ku pointed out the risks of Taiwan shifting its policies on the South China Sea against China and cautions the United States from pushing Taiwan to oppose Chinese claims in the region. As the Chinese government seems to view the South China Sea as a chance to foster cooperation between Taipei and Beijing, Taiwanese opposition to Chinese claims in the region would only strain relations between China and Taiwan.

Finally, Ben put forth these 10 reasons to support Lawfare during the holiday season. As a reminder, “every dollar you donate between now and December 30th constitutes a separate entry into our drawing for this year's grand prize: Lawfare's special ‘Handmaiden of Power’ Starter Pack.” You won't want to miss yours.

And that was the week that was.