The Week That Was

The Week that Was: All of Lawfare in One Post

By Yishai Schwartz
Saturday, February 8, 2014, 9:55 AM

As the week began, we found ourselves in the middle of one of our own stories as we persevered through a new round of cyberattacks.

Nevertheless Lawfare continued apace. Ben brought us the next installment of our podcast series, an interview with Robert Litt, general counsel for the Director of National Intelligence. And Paul inaugurated “Bits and Bytes,” a new featurette consisting of links and explanations for items he thinks readers will find interesting. The first post explained why Google’s purchase of the artificial intelligence company Deep Mind may be creepy, and what a recent arrest means for the regulation of Bitcoin. And the second discussed stories about the counterintuitive effects of Snowden disclosures, Google’s bullet-dodging anti-trust settlement, and a defense of Canadian surveillance programs.

But the Canadians aren’t the only foreign intelligence service that we discussed this week.

Ben brought us analysis of the recent advisory opinion on GCHQ data collection in Britain from Hasan Dindjer, a young student he met at his Oxford Union drone debate. And he noted the recent hullaballoo over an apparently-Russian leaked recording of two American diplomats discussing developments in the Ukraine. The exchange included a, shall we say, indelicate dismissal of the potential for constructive EU involvement, and appears to have been released to disrupt Western efforts to help resolve the local political crisis. Ben took the opportunity to remind us not to “whine” when countries use surveillance to advance their strategic interests.

Also, Paul linked to an NBC report demonstrating just how quickly Russian intelligence will hack visitors’ devices.  But he quickly followed this post with another noting that at least some security professionals found the NBC report to be not credible.

Laura Dean posted another installment in her Cairo Diary, this one describing the suddenly empty homes of journalists and suspected members of the Muslim Brotherhood who have been arrested by the regime. The images are dystopian and her readers will be left with the eerie sense that anyone can be seized at any moment.

In this week’s foreign policy essay, Renanah Miles argues that deep structural and cultural issues stymie American civilian agencies’ attempts to stabilize conflicts and build state capacity overseas. She calls for the State Department to begin making the structural changes necessary to handle internal disagreements, to clarify its mission, and to make its approach towards Congress more effective before the next major opportunity for state building presents itself.

Continuing with our FISA reform discussions, Steve responded to Judge Bates’ opposition to the appointment of a FISA special advocate. Steve argued that Judge Bates’ criticism misinterpreted the substance of current proposals, that FISC has not been proactive about appointing amici in the necessary situations, that the adversarial nature of the process would not undermine the candor that currently governs FISC’s relationship with the intelligence community, and that constitutional concerns are overstated. Meanwhile, Carrie Cordero commented on the Daoud disclosure order, which required the disclosure to defense counsel of FISA materials. This would have been a big deal pre-Snowden, she argued, and probably wouldn't have happened at all.

Staying abreast of important security news, Wells flagged a Washington Post article covering a scaling back of the US targeted killing program in Pakistan. Ben noted al-Qaeda’s decision to break with a local Islamist Syrian rebel group, the Islamic State of Iraq and al-Sham. And Jack linked to a press release from Senator Jeff Merkley announcing a bipartisan effort to insist that the President win congressional approval for an extension of American military action in Afghanistan.

Apparently, NSA isn’t quite as thorough as critics allege and supporters would like. Wells linked to a story in the Washington Post by Ellen Nakashima explaining that NSA’s metadata program actually collects less than 30 percent of all American call records.

On Tuesday, I flagged three relevant hearings on Capitol Hill touching on cybersecurity, FISA reform and global threats. And Paul noted DNI Clapper’s particular emphasis on the potential for destructive cyberattacks during the annual “World Wide Threat” assessment before the Senate Intelligence Committee.

We flagged a bunch of stuff to read this week as well:

Ken welcomed Lt. Cmdr. Steven R. Obert’s “Using Force on Land to Suppress Piracy at Sea: The Legal Landscape of a Largely Untapped Strategy” as a thorough exploration of an underexplored area of piracy law. At the same time, he resisted Obert’s assumed binary division between the law of armed conflict and human rights law.

Wells linked to a new law review article, “Drones: the Power to Kill,” by Bush-era Attorney General Alberto Gonzales and to some responses the article has generated. Gonzales proposes procedures and safeguards for when the US government targets an American citizen for death. Steve’s response is thorough.

Ken flagged the publication of a special symposium on whether armed drones are strategically something truly new in Strategika, a Hoover Institution online journal edited by Victor Davis Hanson, and linked to a contribution by Ben and himself. Ken argues that in a conventional battlefield, drones are nothing qualitatively new, but for counterterrorism, they are a game-changer.

And in advance of attending an autonomous weapons conference, Ken introduced “Charting the Legal Geography of Non-International Armed Conflict,” an article by Michael Schmitt. Ken found the article clear and precise and agreed with much of it, even as he assigns human rights law less applicability within the context of armed conflict.

Ben spoke this week at an event at the Berkman Center at Harvard University. Immediately afterwards, he posted a quick reaction. He seemed most excited to report the nuanced views of a distinguished audience member, Tim Berners-Lee, the inventor of the World Wide Web. It turns out, Berners-Lee was not quite the civil libertarian caricature Ben embarrassedly admitted he expected, but was far more interested in ensuring proper procedures and oversight than restricting government surveillance and data-analytics activities altogether. Ben followed his initial post with a full video of the event and a link to a summary from the Cyborgology blog authored by Whitney Erin Boesel. According to Boesel, the panel boiled down to a debate between “Team Hobbes” and “Team Rousseau.”

Later in the week, Ben got into a bit of a tussle with the ACLU’s Jameel Jaffer. Ben argued that the sheer legal complexity of NSA programs defies easy summary and explanation, and therefore naturally creates mistrust and controversy. Jameel thought Ben was engaged in indefensible special pleading. He agreed that NSA’s programs are complicated, but insisted that any official who claims simply that “NSA does not spy on Americans” is deliberately trying to mislead.

Wells gave us some updates on the status of the Guantanamo 9/11 case. He explained that he wouldn’t be offering a preview post on the upcoming pretrial hearing because the proceeding appeared frozen pending a determination on the competence of defendant Ramzi Bin al-Shibh. Later, he confirmed this and let us know that the next hearing should be convened in April.

In other Guantanamo news, Jane noted that charges against detainee Ahmed Mohammed Ahmed Haza al Darbi have been referred to a military tribunal.

And because I somehow missed it in last week’s Week that Was: Last week, Ben posted a grateful farewell to outgoing Associate Editor Raffaela Wakeman. Ben described her as a “workhorse” who had a huge role in building the site, and personally, I’m incredibly grateful to her, because she’s the one who welcomed me in and showed me the ropes.

And that was the week that was.