The Week That Was

The Week that Was: All of Lawfare in One Post

By Alex Potcovaru
Saturday, June 17, 2017, 8:30 AM

On Sunday, Benjamin Wittes and Quinta Jurecic discussed the statements made by President Trump's personal lawyer Marc Kasowitz following former FBI Director James Comey’s testimony last week before the Senate Intelligence Committee; they noted Kasowitz’s factual inconsistency and how he might harm Trump’s potential defense down the line. Bob Bauer examined what Comey’s testimony and Kasowitz’s influence might mean for the deteriorating boundary between private interests and the rule of law. Paul Rosenzweig pointed out that Kasowitz may have violated the Rules of Professional Conduct by reportedly informing White House aides that they did not yet need to hire personal lawyers. And Andrew Kent provided an in-depth overview of the legal ethics questions that could plague Kasowitz moving forward.

There was also plenty of breaking news this week in connection with the Russia investigation. On Monday, the New York Times reported that according to a “longtime friend of President Trump,” Trump was contemplating firing Special Counsel Robert Mueller. In response, Jack Goldsmith walked through the complex hypothetical chain of events that could occur if Trump follows through on removing Mueller. On Wednesday, the Washington Post reported that Mueller is investigating Trump for possible obstruction of justice. Trump issued two tweets calling the obstruction of justice question “phony” and a “witch hunt.”

On Friday, Trump seemed to confirm he was under investigation in yet another tweet:

Some hours later, citing unnamed sources, ABC News reported that the acting attorney general on the Russia investigation, Rod Rosenstein, privately acknowledged he may need to recuse himself from the probe. Jack Goldsmith and Wittes wrote about what to expect if Rosenstein indeed recuses and what Associate Attorney General Rachel Brand should do if she is required to take the reins as the next in the line of succession.

In other L’Affaire Russe news, on Tuesday morning Rosenstein testified before a Senate Appropriations subcommittee on the Justice Department’s proposed F2018 budget, which Jane Chong liveblogged; many of the questions ended up being about Russia and Mueller. That afternoon Attorney General Jeff Sessions testified before the Senate Intelligence Committee on the Russia investigation. Chong and Jurecic liveblogged the hearing, during which Sessions denied any collusion with Russia during the 2016 election, denied having contact with Russian Ambassador Kislyak in a secret third meeting, was asked to respond to former FBI Director James Comey’s testimony last week, and declined to answer senators’ questions about personal conversations with Donald Trump, citing the need to preserve the president’s option of invoking the executive privilege. John E. Bies provided a primer on executive privilege, and in a special edition of the Lawfare Podcast, Wittes posted the Sessions testimony trimmed to just the portions with new information:

On Rational Security, the gang discussed the Sessions testimony, the Pentagon’s new authority to set troop levels in Afghanistan, and got a special visit from Wittes’ alter-ego, “Benjamin Sittes”:

Rebecca Ingber took on the myth of a “deep state” seeking to undercut the President’s agenda and instead looked at how the executive branch bureaucracy really functions.

In travel ban news, on Monday the Court of Appeals for the Ninth Circuit announced its ruling upholding most of the injunction in Hawaii v. Trump. The Court affirmed the preliminary injunction against the ban but vacated the parts that prohibited the government from conducting internal reviews and that applied the injunction to the president personally. Amira Mikhail and Jordan Brunner provided a summary of the ruling and Peter Margulies argued that the opinion relied on a flawed reading of the Immigration and Nationality Act.

On this week’s National Security Law Podcast, Robert Chesney and Steve Vladeck discussed the possible Trump attempt to fire Mueller, as well as Comey’s testimony last week, travel ban news, an airstrike in Somalia that relied on recent Defense Department policy shifts.

On the Steptoe Cyberlaw Podcast, the crew, with a guest appearance by Wittes, discussed FBI leak history, the UK election, the Qatar crisis, Ukraine’s new sanctions against Russian (and their own?) social media companies, FISA Section 702, and more:

In cyber news, the Post reported this week that the NSA has connected the North Korean spy agency to the WannaCry ransomware attack with “moderate certainty.” Steven Weber and Chuck Kapelke considered how Trump’s recent executive order on cybersecurity could have stopped the attack, which affected users and institutions in over 150 countries. Herb Lin looked at the language of a proposed bill which would require congressional notification following offensive cyber operations, arguing that it takes necessary steps in the right direction but that some language needs clarification and expansion. Nicholas Weaver also discussed CrashOverride, a computer program he called a “transient anti-infrastructure warhead designed to disrupt the power grid.”

We had a lot of cross-border data analysis. Kevin Bankston argued for an end to the encryption debate and suggested three other areas we should focus on instead, including solving the problem of data access in cross-border investigations. Andrew Keane Woods wrote that the simplest solution to the cross-border data problems would be to remove the blocking features of the Electronic Communications Privacy Act. Cameron Kerry wrote that Trump’s actions risk damaging the U.S.-EU Privacy Shield framework, which allows for transatlantic commercial data flows. Robert Litt responded that regardless of the President’s actions, the underlying framework of the shield, and U.S. commitment, remains strong. And Rosenzweig announced an event he is hosting at The Heritage Foundation on Thursday, June 22 at 9 AM called “Digital Security and Due Process: Modernizing Cross-Border Surveillance Law for the Cloud Era,” featuring remarks by Kent Walker, Senior VP and General Counsel at Google.

Rebecca Crootof and Frauke Renz wrote that a stall in an autonomous weapons systems treaty gives the international community the valuable opportunity to consider new regulatory solutions to a unique set of challenges.

In Section 702 news, Jurecic posted 18 newly released FISA Court opinions dealing with the statute, and Jake Laperruque argued that reform of Section 702 is possible without damaging its essential uses for the foreign intelligence community. Additionally, Director of National Intelligence Dan Coats told senators last week that quantifying the number of U.S. persons whose information has been incidentally collected under 702 would too heavily divert agency resources and also threaten privacy rights. Anne Boustead suggested four questions Senator Ron Wyden should ask Coats to ascertain precisely why this estimate is not available and what can be done to move closer to obtaining it.

In Middle East news, J. Dana Stuster reviewed recent developments, including the fight in Raqqa and the Qatar diplomatic crisis, and Beverly Milton-Edwards provided a possible solution to the Gulf Cooperation Council rift. Daniel Byman examined ISIS’s ability to conduct attacks abroad, acknowledging that the group’s threat is real but sometimes exaggerated and often misunderstood. Rosenzweig explained the recent diplomatic crisis in the Gulf surrounding Qatar and the three ways cyber interference may have played a role. It's the first post in our new category, "While Nero Fiddles," a collection of important security stories that risk being buried beneath the daily Trump news.

In the Foreign Policy Essay, Andrew Glazzard and Eric Roland responded to many of the most common arguments raised against Countering Violent Extremism (CVE) efforts, and argued that despite imperfections, CVE will and should continue to play a key role in the fight against terror. Walter Haydock suggested consolidating the terror watchlisting bureaucracy by merging the Terrorist Screening Center and the National Targeting Center. And Adam Klein introduced his new essay on what he deems the “cynical politics of counterterrorism.”

In Water Wars, Jimmy Chalk and Sarah Grant reported on a recent U.S.-China joint research expedition in the South China Sea and a prominent Filipino politician’s support for joint energy exploration in the region.

Peter A. Dutton and Isaac B. Kardon examined a recent U.S. "freedom of navigation operation (FONOP)" in the South China Sea that may not have been a FONOP at all, and they explain why the classification can make a big difference in terms of U.S. policy and international law.

Rosenzweig noted that Lawfare sold its Bitcoin at a healthy profit.

And that was the week that was.