The Week That Was

The Week That Was: All of Lawfare in One Post

By Yishai Schwartz
Saturday, February 15, 2014, 11:28 AM

As this past week began, Ben expressed some exasperation with Angela Merkel and State Department officials for whining like a “bunch of babies” in their responses to the release of an undiplomatic phone call between two diplomats discussing the crisis in the Ukraine.

But it’s not just diplomatic exchanges that are being monitored by the Russians. In his next installment of “Bits and Bytes,” Paul linked to a Lookingglass special alert warning users of unsecured wireless devices about significant criminal activity in Sochi. His other link was to a Computer World article explaining that the Target hackers stole their login credentials from a company that provides Target with HVAC services.

Private industry may be headed for some self-regulation to prevent these kinds of events. Paul noted that the National Institute of Standards and Technology released its “Framework for Improving Critical Infrastructure Cybersecurity,” and predicted that industry would feel compelled to follow the guidelines. He observed that the Framework was largely similar to earlier drafts, and maintained its “tiered” system for rating compliance with its standards, but also loosened some of its privacy requirements.

Speaking of Cybersecurity, Lawfare was once again subjected to a series of attacks this week. Please stop, whoever you are. Ben solicited reader support, as Lawfare seeks to investigate and resolve the apparent security problem for good.

On to Snowdenia. Ben reviewed The Snowden Operation: Inside the West’s Greatest Intelligence Disaster, a new extended essay by Edward Lucas. Ben liked the bulk of the essay, which explained the extent of the damage Snowden wreaked.  Butt he finds Lucas’ conjecture that Snowden was an unknowing puppet, directed all along by Russian intelligence, to be a bit too far ahead of the evidence.

Wells noted the release of the latest batch of FISC documents, approving the President’s adjustments to the operation of the metadata program, and Ben posted the DNI’s newly released (and largely unsurprising) official list of “permissible uses of signals intelligence collected in bulk.” Wells also flagged the appearance of the members of the Privacy and Civil Liberties Board before the Senate Judiciary Committee to testify about their report on the government’s metadata program. Meanwhile, Paul noted one of the worst ideas he’ seen in a while: an attempt by some Maryland legislators to cut “material support” (including water and electricity) to local NSA facilities.

Recently, Chris Donesa wondered what was possibly motivating the “people familiar with the NSA program” to leak to the press that the 215 program collects less than 30% of total communications. He worries that officials mistakenly saw the leaks as a means of allaying fears that government is “Big Brother” or as a tone-deaf attempt to raise support for expanding the program. Instead the deficiencies will raise questions about efficacy and aid the program’s critics.

Paul flagged the EU’s new push to globalize internet governance, using Snowden’s revelations about American surveillance as its excuse. Paul noted that he had predicted this, and confirmed that he continues to think globalized internet governance is a bad thing.

After all the disclosures about surveillance on foreign leaders, Ashley did some digging through the publicly available documents and treaties, and she is pretty sure there is no legally binding “no spy” agreement between the United States and other countries. But given that Canada and New Zealand appear to think that such an agreement does exist, Ashley posits there might be some sort of “understanding” at play.

In the foreign essay policy, al-Qaeda expert Assaf Moghadam discussed the combination of “top-down” and “bottom-up” innovation that has made some of al-Qaeda’s operations so successful.

But who is considered al-Qaeda? Jack reacted to a Washington Post report that al-Qaeda’s expulsion of its Syrian affiliate ISIS has led some administration lawyers to worry that action against ISIS may no longer be authorized by the AUMF. Jack notes that it is news that the administration ever considered the AUMF to authorize action against ISIS, and wonders why President Obama is more likely to assert inherent Article II powers for humanitarian action than for counterterrorism.

Relatedly, Jack flagged an article by the AP’s Kimberly Dozier depicting the Obama administration twisting itself into knots as it tries to determine whether an American citizen who is an al-Qaeda facilitator can be targeted with lethal force. He followed this up with an analysis of two more drone-related news stories in the Times and Journal. Jack remains puzzled by President Obama’s strong interest in moving the drone program from CIA to DOD, and suggests that respect for international law---and thus the ability to operate in Pakistan---may be the crucial difference between the two agencies with respect to some drone strikes currently under debate.

Also media-related, Matt commented on the “spin” coming from these same two leading newspapers on the economic situation in Iran. He suggested that the discrepancy between the economic evaluations of the Wall Street Journal and the New York Times may have something to do with their views on increased sanctions. And Ben linked gleefully to a New York Observer story quoting New York Times news staffers leveling some pretty heavy criticism at the Times’ editorials, and particularly the Opinion Editor, Andrew Rosenthal.

Turning to detainee news: Wells reported the much awaited DC panel decision in the Guantanamo force-feeding case, Aamer v. Obama. The majority ruled that despite the Military Commissions Act, the federal courts have habeas jurisdiction over claims regarding conditions of confinement. Jane followed up with a close analysis arguing that the true significance of the case lay in its expansion of habeas jurisdiction asserted by the courts in Boumediene v. Bush. Jane suggests that the decision has far-reaching implications for the development and understanding of habeas.

As we consider Guantanamo, it’s worth reading a Politico article Wells linked to by Josh Gerstein drawing out potential implications from the recent acquittal in the Ali piracy case.

Paul drew our attention to a new film released by the Annenberg Public Policy Center, “Homeland Confusion,” continuing its campaign to streamline Congressional oversight of the Department of Homeland Security. Although bipartisan groups have repeatedly pointed out that the proliferation of committees that claim oversight authority over DHS seriously hampers its effectiveness, Paul doesn’t have much hope for imminent reform.

Ken gave a very positive review to a new working paper, “The Concept of Jus Post Bellum in International Law: A Normative Critique,” by Eric De Brabandere of the Grotius Center at Leiden University School of Law. Ken explained that De Brabandere offers a powerful critique of the entire concept of jus post bello obligations and suggests that adding a third category to our traditional concepts of jus in bello and jus ad bellum erodes the firm barriers between them.

As the week began, Ben posted our podcast, an edited version of his discussion on “Defending an Unowned Internet” at Harvard’s Berkman Center. And as the week ended, he linked to an Intelligence Squared debate on the resolution “Snowden was Justified” featuring ACLU’s Ben Wizner and Daniel Ellsberg vs. former CIA Director James Woolsey and Andrew McCarthy, and a lively episode of Radiolab on the origins of the “Glomar” response. Of course, Lawfare can neither confirm nor deny the veracity of the radio episode.

Jack flagged an intriguing analysis, by Bruce Schneier, of the public-versus-private-storage of metadata question. The latter is implicated, of course, by the President’s proposed reforms to the NSA’s telephone records collection under Section 215 of the Patriot Act.

And that was the week that was.