The Week That Was

The Week That Was: All of Lawfare in One Post

By Alex Potcovaru
Saturday, July 8, 2017, 7:07 AM

Susan Hennessey and Benjamin Wittes announced Lawfare's new partnership with Foreign Policy magazine called Lawfare@FP. In their inaugural column as part of the partnership, they explain that the possibility of “collusion” between Trump and Russia is on its face a political problem, not a legal one. But the actions underlying the collusion could become legal matters as they continue to develop.

After news broke Tuesday that North Korea had successfully tested an intercontinental ballistic missile that could reach as far as Alaska, Jared Drummitt and Eliot Kim covered the developments, as well as a U.S. Freedom of Navigaiton Operation in the South China Sea earlier in the week. Benjamin Wittes posted this week's Rational Security podcast, on which the gang covered the North Korean threat, the G20 Summit, including Trump’s meeting with Vladimir Putin, and the first signs of collusion between the Trump campaign and Russia:

Jane Chong analyzed how the Justice Department’s recent position on the Foreign Emoluments Clause contradicts the historical position of the Office of Legal Counsel and Comptroller General. Following a critique of the piece, Chong summarized her reply.

Many of the top positions in the Trump Executive Branch remain unfilled. In fact, in April it was estimated that 85 percent of the positions requiring Senate approval stilll lacked a nominee. Trump has indicated this is part of a strategy to eliminate certain positions, but Christopher Fonzone and Joshua A. Geltzer explain why it may be unlawful.

Bob Bauer argued that Trump’s tweets do not demonstrate a “modern” presidency, as Trump has claimed, but rather one that struggles with demonstrating competence to govern, upholding the dignity of the office, and failing to separate the public from the private, a cause for major ethics concerns.

Last week, the UN Group of Governmental Experts (GGE) failed to reach a consensus agreement on a report detailing normative cyberspace guidelines for states. Arun Mohan Sukuman argued that regardless of the setback, states should continue to try to develop these international legal standards.

Stewart Baker posted the Steptoe Cyberlaw Podcast where the group discussed a host of issues, including journalists overplaying their hands on the Russia investigation, the CFIUS logjam, and the GGE failure:

Baker also posted the second half of this week’s Steptoe Cyberlaw Podcast, featuring an interview with former Deputy Director of the NSA Richard Ledgett:

Officials have expressed concerns over government use of the Moscow-based Kaspersky cybersecurity software, with the heads of major intelligence agencies testifying that they would not allow their organizations to use it. Recently proposed legislation would ban the U.S. military from owning or using the product. The company has denied allegiances to any government, and founder Eugene Kaspersky has offered to permit the inspection of the source code of the product. However, Herb Lin explained why that examination would not fully rule out the possibility that it could be used in a cyberattack.

Aaron F. Brantly, Nerea M. Cal, and Devlin Winkelstein examined recent hybrid warfare attacks on Ukraine, including kinetic, cyber, and psychological aggression. They argued that if the borderless forces at work are left unaddressed, they could wreak havoc on Western institutions.

J. Dana Stuster posted this week's Middle East Ticker, covering the battle to retake Mosul, Secretary Tillerson’s concessions to Russia on the future role of the Assad regime in Syria, and Saudi Arabian politics, including the new Crown Prince Mohammad Bin Salman’s consolidation of power and the Kingdom’s demands to Qatar.

Analysts typically view Al Qaeda and ISIS as competitors and rivals, but for would-be American jihadists, the ideologies of both often overlap and intermix in their appeal. Prachi Vyas analyzed this blended enthusiasm for two outlooks understood to conflict with each other.

A June 27 airstrike in eastern Syria on a building used as an ISIS prison caused a significant number of civilian casualties—a growing trend in the fight against the group. Emily Chertoff and Zachary Manfredi explained how the decision to target the building may have been driven by an increasing reliance on a controversial U.S. interpretation of the law of targeting, relating to an object’s contribution to the belligerent's economy.

Kenneth Anderson and Matthew Waxman announced their new essay, “Debating Autonomous Weapon Systems, Their Ethics, and Their Regulation Under International Law.” The piece covers a debate that has raged since 2012, with one side pushing regulation of lethal autonomous systems and the other advocating an international treaty ban.

Matthew Kahn summarized the June 29 military commissions proceedings in the Abd al Hadi al Iraqi case. Jane Chong posted a statement from the Military Commissions Deputy Chief Prosecutor Robert C. Moscati on developments in United States v. Ahmed Mohammed Ahmed Haza al-Darbi.

This week the D.C. Circuit Court refused to adjudicate Jaber v. United States on grounds that it presented a nonjusticiable political question. The suit was brought against the government by family members of individuals killed in a 2012 drone strike in Yemen. Robert Loeb argued that the Court’s decision violates the requirements of the Torture Victim Prevention Act, which forces federal courts to hear claims of foreign, extrajudicial killing taken under the color of foreign law.

On June 26, the Supreme Court issued a stay order on the Trump administration’s travel ban, deciding that those with a “close familial relationship” could not be blocked from entry under the executive order. On the Lawfare@FP feed, Quinta Jurecic discussed the notable absence of the personal qualities of Donald Trump in the Supreme Court’s order, factors that took center stage in the lower courts’ rulings.

Based on the June 26 order, the Trump administration appeared to have some latitude to determine which relationships to exclude, including groups like grandparents and brothers and sisters-in-law. Peter Margulies argued that by not treating relationships with grandparents as “close” or relationships with approved refugee resettlement agencies as “bona fide,” the Trump administration interpreted the Court’s order too narrowly.

The State of Hawaii took a similar position: it filed an emergency motion in U.S. District Court on June 29 to clarify the scope of the Supreme Court’s preliminary injunction, claiming that the administration’s definition was too exclusionary. Margulies also reported on the July 6 decsision by Judge Derrick J. Watson of the U.S. District Court for the District of Hawaii to refuse to engage.

The Canadian Supreme Court ruled that Google must remove content the Court deemed to violate intellectual property law from all versions of its search engine worldwide, not only the Canadian version. The decision caused considerable concern among some commentators about the implications of the ability of one country’s courts to enforce an injunction worldwide. But on Lawfare, Andrew Keane Woods argued that this already happens all the time, and the presence of a limiting principle in this case makes the fears unwarranted.

The 1984 Sino-British Joint Declaration establishes autonomy and individual rights for Hong Kong. But a recent statement from a spokesman for the Chinese Ministry of Foreign Affairs may have indicated that China no longer considers the agreement legally binding, with confusion stemming from variations in the English translation. Julian Ku provided his take.

Elena Chachko examined new developments in Israeli counterterrorism law, including changes to discriminatory practices in home demolition policy, the ability to seek damages from the heirs of terrorists, and clarification of the crime of providing material support to terrorists.

And that was the week that was.