The Week That Was

The Week That Was: All of Lawfare in One Post

By Yishai Schwartz
Saturday, March 1, 2014, 10:00 AM

As the week began, Lawfare’s focus was on the courts. Ben and I provided a recap of oral arguments in Al Laithi v Rumsfeld, in which the DC Circuit considered the limits of officials’ immunity for conduct at Guantanamo claimed to be within the scope of their office.

Ben linked to the motion that successfully gained defendant Sulaiman Abu Gayth access to KSM, and he noted Judge Kaplan’s rejection of a government motion to allow a witness to testify under a pseudonym. Ben then linked to sections of Benjamin Weiser’s coverage in the New York Times for help in clarifying Judge Kaplan’s somewhat terse explanation of the rejection.

And just when we were becoming so conditioned to Guantanamo that we might have forgotten about run-of-the-mill criminal trials, Wells let us know that jury duty would be forcing him to take a hiatus from his regular live-blogging of the Al Nashiri motions hearings.

Not to worry, however, Matt Danzer provided coverage of the hearings based on court transcripts. Matt’s posts followed pretrial motions relating to jurisdiction, venue, classified evidence, and capital punishment, and he posted a summary statement from the case’s chief prosecutor. The final motions hearing was in closed session, but Wells assured us that when the trial resumes in April, Lawfare’s coverage will return as well.

Lawfare hasn't gone down this week (wood duly knocked), but that doesn't mean we’ve stopped thinking about cybersecurity. In reaction to a David Sanger piece in the New York Times, Jack considered the legal basis for a possible US cyberattack on Syria. And after meeting a DC police officer with an RSA token in a local coffee shop, Paul meditated on the increasing pervasiveness of cyber systems and the expanding need for cybersecurity.

Paul followed this up with a post from the mega-conference hosted by cybersecurity company RSA, observing that some technology professionals display a notable lack of humility when discussing larger questions of law and policy. On Paul’s advice, Ben then posted video of two RSA keynote speeches, one on cyberdefense and the other on cyberwar.

Onto drones: Jack flagged a Just Security post from Marty Lederman critiquing an AP account of US drone usage and carefully parsing the covert action statute. Ben linked to the New York Times attempt at playing “guess who” with the American government as to which citizen it is currently considering targeting. Jack followed on with a discussion of a few strange sentences near the end of the same article, which seem to imply a shift in targeting authority to DOD in order to allow more transparency.

Former Air Force General Counsel Charles Blanchard pushed back against the current movement in the human rights community to prospectively ban autonomous weapons systems. He suggested that such a ban is unnecessary because any autonomous weapon incapable of conforming to international norms wouldn’t provide much of an advantage on a battlefield either.

This week’s Foreign Policy Essay, from Stanford’s Stephen Krasner, analyzed the effect of hyper partisanship on foreign policy. He specifically addressed our ability to address the two major strategic threats facing the United States: a rising China and weak, malevolent states.

We had some announcements as well: Bobby announced the 7th Annual National Security Law Workshop and invited proposals and attendance requests. I flagged the Senate Intelligence Committee hearings on Francis Taylor’s and John Carlin’s nominations to leading national security posts. And Ritika posted an announcement advertising for applications to replace me, the Lawfare intern.

Lauren reported on the Supreme Court’s unanimous decision recognizing that an officer’s authority to ban disruptors from military installations extends to civilian “protest areas.”

Ben noted the New York Times’ rather unselfconscious call for transparency in the use of consumer data. In the interest of transparency, he suggested, perhaps the Times would like to reveal what data it buys and how it uses this data to market itself to consumers?

Speaking of metadata: Jane gave us an update on recent action in the Klayman v. Obama metadata case. The government filed a motion asking for additional time to prepare its appeal in light of President Obama’s recent changes to the signals surveillance programs. But Larry Klayman has responded with a fiery motion opposing further delays and accusing the government of serial lying.

Peter Margulies linked to an article he has written responding to critics of the 215 program who complain that FISC has interpreted the statute’s “relevance” standard overly broadly. He argued that Congress intended the standard to be “fluid” to accommodate for changes in the technology and security landscape.

W. George Jameson explored how leaks might best be defined, prosecuted and prevented, and urged a stronger distinction between damaging public leaks and acts of foreign espionage.

Ben engaged in some surveillance of his own during a drive home from work.

And he posted a bizarre Egyptian government web site's attempt to assure readers that there is not, in fact, a US plot against Egypt.

And was the week that was.