The Week That Was

The Week that Was: All of Lawfare in One Post

By Jordan Brunner
Saturday, February 11, 2017, 7:53 AM

Yes, this week, the Ninth Circuit decided to temporarily leave in place the nationwide injunction on President Trump’s ban on entry to the United States from seven Muslim countries. And, yes, the president then tweeted about Lawfare. But we were actually publishing Lawfare before those things happened. Here’s the rundown.

Quinta Jurecic posted the Lawfare Podcast, featuring Jack Goldsmith and Marty Lederman’s debate over the actions of former Acting Attorney General Sally Yates.

Andrew Kent examined when heads of executive departments can refuse White House orders. Nora Ellingsen delved into the empirical data on who terrorists are and how they relate to assumptions in Trump’s refugee executive order. Lisa Monaco presented the dangers of turning inward in response to transregional threats faced by United States faces. Jordan Brunner highlighted how President Trump’s controversial views on refugees and climate change are linked to the security issue of climate refugees.

Samuel Bray presented the case against national injunctions by federal courts. Elizabeth McElvein highlighted the deep divisions in popular opinion over Trump’s refugee ban. Jack Goldsmith argued that either President Trump wants his refugee ban executive order to be struck down, or that White House Counsel Donald McGahn is incompetent. Susan Hennessey provided the tip that journalists should look into threats against federal judges following Trump’s tweets. And Andrew Keane Woods examined the brief filed by over ninety Silicon Valley firms against Trump‘s refugee ban.

Quinta posted the recording of the Ninth Circuit oral argument from Washington v. Trump, while Carrie Cordero outlined a few quick thoughts on making national security arguments in court based on the Trump case. Peter Margulies dissected the government’s arguments before the Ninth Circuit, and described different facets of the Ninth Circuit’s examination of the refugee ban.

After the unanimous decision came down, Quinta also flagged the decision in Washington v. Trump, Emma Kohse summarized it, and Benjamin Wittes reviewed the two big questions at issue in the Trump case, and how they were handled by the Ninth Circuit.

This latter piece is what triggered the now infamous tweet from President Trump. Meanwhile, Curtis Bradley and Neil S. Siegel raised concerns that Trump may use blame-shifting after an attack to weaken the judiciary and the media, while Jane Chong provided an explanation for why the Ninth Circuit avoided statutory and constitutional questions in the Trump case. Peter described the path forward that the government should now take on the executive order. And Jessica Brandt examined what Congress’s role is in the debate over the order.

A few other executive orders got airtime this week. Bobby Chesney annotated the latest draft of Trump’s executive order on Guantanamo detention, while Jack explained the practical need for an ISIL AUMF based on the draft. Quinta flagged the Trump administration's three new executive orders on law enforcement, which Rick Houghton summarized. Paul Rosenzweig provided a revised draft of President Trump’s executive order on cybersecurity that he received from three different sources. And Charley Snyder and Michael Sulmeyer highlighted some issues from DoD’s memo exempting cyber from Trump’s hiring freeze.

Quinta flagged the livestream of the Texas Law Review symposium on the Tallinn Manual 2.0 shortly before its release to the public by the Atlantic Council. Jane Chong flagged the video of the book launch of the Manual, while Andrew Keane Woods focused on Tallinn Manual 2.0’s application of the law of state sovereignty to cyberspace.

Paul offered some bits and bytes for consumption. Stewart Baker posted the Steptoe Cyberlaw Podcast: Thigh-High Boots and Defense Dominance.

Lisa Daniels summarized In re Search Warrant No. 16-960-M-01 to Google. Susan Landau flagged a paper she co-authored in the Harvard Journal of Law and Technology on electronic surveillance law. And Michael Linhorst described the rejection by the FISC of the claim that the public has a First Amendment right to court decisions about bulk data collection. 

Susan placed the report that Michael Flynn discussed sanctions with Russia within the context of past investigations and reporting.

Russian interference and connections to the election were a topic of discussion for the Rational Security gang in an episode featuring Senator Chris Coons (D-DE). Benjamin Wittes posted the Rational Security podcast: The “Guess Who’s Coming to Dinner” Edition, complete with an amusing photo of Susan and a delicious taco bowl.



Lisa Daniels and Ed Stein provided a backgrounder on a bill introduced to regulate the president’s ability to appoint advisors to the National Security Council and the NSC Principals Committee.

Ed also examined whether President Trump could levy sanctions against the Muslim Brotherhood and Jillian Schwedler highlighted the folly of designating the Muslim Brotherhood as a terrorist organization.

Looking farther abroad, Julian Ku explained that Secretary of State Rex Tillerson did not actually call for a blockade of China’s South China Sea Islands, and Chris Mirasola commented on the Trump administration’s push of the reset button in the Asia-Pacific.

Quinta explored the implications that Trump’s response to the Quebec terrorist attack has for the CVE program. Stephanie Leutert and Savitri Arvey examined what Mexico’s next moves might be in light of Trump’s recent actions. And Iain Henry described the slowly changing reality of the U.S.-Australian alliance.

Elena Chachko provided a primer on legislation in Israel that purports to “legalize” settlements in the West Bank, and Yishai Schwartz examined the history of the Amona settlement and the new settlements law. J. Dana Stuster updated the Middle East Ticker.

In the Foreign Policy Essay, Carol Saivetz examined what Russian President Vladimir Putin might want from a bargain with President Trump.

Barrie Sander reviewed Anti-Impunity and the Human Rights Agenda, edited by Karen Engle, Zinaida Miller, and D.M. Davis.

Ben and Susan assured those concerned that Rick Ledgett’s retirement from the NSA was not a political protest.

Jane offered some questions and answers to more productively frame the idea of a “Reichstag fire” happening here in the United States.

And Jonathan Rauch explored the lessons he learned in writing his article for the Atlantic, “Containing Trump.”

And that was the week that was.