The Week That Was

The Week that Was: All of Lawfare in One Post

By Jordan Brunner
Saturday, February 18, 2017, 7:37 AM

General Michael T. Flynn was forced to resign this week because of his discussion of U.S. sanctions on Russia with Russian ambassador to the United States Sergey Kislyak—discussions he earlier denied. The Rational Security gang saw Flynn’s downfall coming, and recorded the “Out Like Flynn” Edition, which Benjamin Wittes posted.

In a throwback to last week, Ben highlighted another instance of President Trump tweeting about an article that he most likely didn’t read.

Jack Goldsmith argued that in the wake of the Flynn imbroglio, the spotlight will fall on Donald McGahn as White House counsel, and then asked more questions about the White House Counsel’s involvement in the Flynn imbroglio.

Jane Chong discussed House Permanent Select Committee on Intelligence Chairman Devin Nunes’s attacks on the FBI’s conduct in the Flynn investigation. Bobby Chesney posted the fourth episode of the National Security Law Podcast: “Flynn, Borders, and PRBs.”

Meanwhile, Susan Hennessey and Helen Murillo examined the laws surrounding government leaks and looked at what a White House response to recent leaking might mean for executive information control, while Timothy Edgar pointed out the irony that Flynn may himself be the first victim of civil liberties abuse during the Trump administration based on the leaks, and that he may want to call the ACLU.

David Kris explained why the treatment of former National Security Adviser Michael Flynn’s phone calls complies with FISA minimization procedures and Nima Binara fleshed out when the intelligence community can legally acquire and use intercepted communications involving U.S. persons who are not the government’s target. Adam Klein presented his thoughts on why leaks of U.S. person information are troubling.

Jake Laperruque pointed out that closing Section 702’s “backdoor search loophole” would require companion reforms to use restrictions, Jane Chong flagged the indictment of Harold Thomas Martin III on charges of willful retention of national defense information, and the Justice Department’s press release, and Nora Ellingsen examined Martin III’s indictment and arraignment.

Samuel Moyn asked where we are now in the post 9/11 struggles over America’s national security and surveillance state, and Stewart Baker posted the Steptoe Cyberlaw Podcast: “Worthwhile Canadian Initiatives.”

Tim Maurer and Hannes Ebert flagged their curated list of publications covering cybersecurity in international relations and distinguished it from similar cybersecurity compendiums.

Benjamin Wittes posted about the upcoming Hoover Institution event, “Cybersecurity in the Trump Administration: What Should We Expect?” Paul Rosenzweig provided some privacy news.

As the Trump administration’s saga with its refugee ban continued, Paul Gewirtz explained how the lack of impulsiveness by the courts in dealing with President Trump’s refugee executive order should guide the Supreme Court going forward. Josh Blackman studied the reasoning of the Ninth Circuit’s panel opinion in Washington v. Trump in Part I of a two-part essay, and continued his analysis of the Ninth Circuit’s refusal to narrow an overbroad injunction in Part II. Peter Margulies flagged the Ninth Circuit's grant of a stay on proceedings pending the issuance of a revised executive order.

Focusing on foreign affairs, Ryan Scoville provided a legal analysis of Rep. Tulsi Gabbard’s trip to Syria and J. Dana Stuster updated the "Middle East Ticker," while Jared Dummitt and Eliot Kim described China's continual criticism of the Trump administration's emerging position on the South China Sea in "Water Wars."

In the Foreign Policy Essay, Lorenzo Vidino called for a more careful and nuanced approach to considering the Muslim Brotherhood. Nora Ellingsen recounted ISIL prosecutions in courts that stretched from Arizona to Florida.

Stephanie Leutert presented her interview with Gabriella Sanchez of the University of Texas on the migrant smuggling dynamics along the U.S.-Mexico border.

Paul Rosenzweig examined whether we need new legislation to pay for President Trump’s border wall.

Daniel Byman laid out the steps that Trump should, but probably won’t, take to combat terrorism, and Ashley Deeks examined foreign constraints on the Trp Administration.

Samuel Cutler described why Flynn’s plan to relax the Russia sanctions would have been terrible policy. Rick Houghton described how Russia’s deployment of prohibited missile platforms threats a landmark INF treaty.

Shane Reeves examined what happens in international law when states no longer govern and non-state actors take over, and Emma Kohse provided commentary on sovereignty issues raised by the Fukushima class action lawsuit. Matthew Wein examined the past and future of the Department of Homeland Security's Joint Task Forces.

Jack Goldsmith argued that the real danger of the Trump administration is not a president that is too strong, but one that is too weak.

Quinta Jurecic explained why Steve Bannon isn’t an evil genius but rather an incompetent internet troll.

Quinta also called for students to intern at Lawfare this summer.

She also flagged that the Justice Department had deposited the complete and unredacted SSCI report in interrogation with the U.S. District Court for the District of Columbia, and posted the Lawfare Podcast, featuring Norm Eisen on the Emoluments Clause.

And that was the week that was.