The Week That Was

The Week that Was: All of Lawfare in One Post

By Quinta Jurecic
Saturday, May 27, 2017, 10:53 AM

Once again, Lawfare has reached the end of an exhausting week. Andrew Kent kicked off the week with a study of what issues fall under newly-appointed Special Counsel Robert Mueller’s jurisdiction in the Russia probe, and whether the public will find out what he uncovers. Aditya Bamzai provided an alternate interpretation of Mueller’s mandate under existing special counsel regulations, while Josh Blackman examined whether President Trump could conceivably remove Mueller from his post.

Jack Goldsmith pushed back on the White House’s suggestion that former FBI Director James Comey “grandstanded” and “politicized” the Russia investigation. Meanwhile, Benjamin Wittes considered the specifics of what might have happened during those supposed three conversations in which Trump claims Comey informed him he was not under investigation. And in the wake of extensive news coverage of Trump’s attempts to engage Comey on the Russia investigation, Justin Florence reminded us of the importance of regulations limiting contacts between the White House and the Department of Justice.

Bob Bauer took a step back to discuss the Trump administration’s troubling posture toward the rule of law, while I asked whether it’s still possible for political appointees to serve ethically under President Trump. I also noted some major takeaways from former CIA Director John Brennan’s testimony before the House Intelligence Committee on Russian election interference.

On Rational Security, the usual suspects discussed the Russia investigation and Trump’s trip abroad in the “Glowing Orb of Peace” Edition:

David Wirth examined what the tea leaves of Trump’s trip might tell us about the fate of the Paris Agreement on climate change. Thomas Juneau also weighed the question of how allies can best deal with President Trump, studying why Canada has been successful in working with Washington so far.

The administration had a very bad week before the courts. First, the U.S. Court of Appeals for the Fourth Circuit remanded a challenge to NSA’s use of Upstream collection back to the district court, finding that Wikimedia had standing to sue. Jordan Brunner, Yishai Schwartz, and I summarized the opinion. Second, the Fourth Circuit also upheld a nationwide preliminary injunction against a key portion of the Trump administration’s revised travel ban. Jordan and Amira Mikhail gave us the details of the ruling, and Peter Margulies gave us his thoughts. Bobby Chesney and Steve Vladeck discussed both rulings on the National Security Law Podcast:

On the Steptoe Cyberlaw Podcast, Stewart Baker and Michael Vatis debated who’s to blame for the WannaCry ransomware attack:

Carrie Cordero alerted us to an interesting Senate Judiciary Committee hearing on law enforcement access to data stored across borders, and Scarlet Kim and Greg Nojeim examined legislation proposed by the Department of Justice on cross-border data requests. Suzanne Vegnolle took a look at the U.S.-France relationship as a case study for the challenges of mutual legal assistance systems, and Andrew Keane Woods considered mutual legal assistance reform more broadly. Dillon Reisman made the technical case against data localization. On a similar note, Kim Peretti and Justin Hemmings ran through the different incentives following a data breach for law enforcement and the victim company.

Russell Spivak examined a recent decision by the U.S. District Court for the Eastern District of New York ruling against holding Facebook liable for the use of its platform by terrorist groups to plan violent actions. Also on the question of terrorism, Daniel Byman weighed what the Manchester suicide bombing shows us about the evolving nature of the terrorism threat and described Iran’s support for terrorist groups across the globe.

Jordan and Chris Mirasola ran through the different legal issues considered at last week’s pretrial hearings in the 9/11 military commission, while I noted a new AUMF proposed by Senators Jeff Flake and Tim Kaine.

Dustin A. Lewis and Jillian Ventura alerted us to a new database on states’ approaches to the use of military force in Syria under international law. In the Middle East Ticker, J. Dana Stuster flagged an attack by the United States on forces aligned with Syrian President Bashar al-Assad. Adham Sahloul argued that the U.S. is moving too fast to take Raqqa from ISIS without thinking through what will come after victory. And focusing elsewhere in the Middle East, Scott Weiner asked how long the deadlock in Kuwait’s parliament will continue.

On the Lawfare Podcast, Mira Rapp-Hooper reminded us all about the ongoing crisis in North Korea:

Julian Ku asked why the U.S. is more likely to sanction Chinese companies that do business with Iran than those that do business with North Korea. He also questioned the failure of U.S. officials to go on the record about what appears to be a recent freedom of navigation operation (FONOP) in the South China Sea. James Kraska examined the legal issues at play in the FONOP, while Jared Dummitt and Eliot Kim gave us more details in this week’s Water Wars. On a similar note, Elsa Kania took a look at China’s growing use of unmanned systems, including in the South China Sea.

And that was the week that was.