The Week That Was

The Week that Was: All of Lawfare in One Post

By Alex Potcovaru
Saturday, June 24, 2017, 2:59 PM

Developments in Syria and rising tensions with Russia drove foreign policy news this week. On Sunday, a U.S. F/A-18 shot down a manned Syrian government Su-22 bomber that had attacked the U.S.-backed Syrian Democratic Forces. J. Dana Stuster covered the incident in the Middle East Ticker, writing that the U.S. appears to be falling deeper into the quagmire of the Syrian conflict—it’s at least the third time the U.S has targeted Assad regime forces in June and the first time a U.S. warplane has attacked a manned aircraft since 1999.

On Monday, Russia responded to the U.S. strike by suspending coordination with the U.S. on de-escalation channels and threatening to target all aircraft west of the Euphrates while on aviation missions. Several other incidents throughout the week displayed the growing tensions.

Chairman of the Joint Chiefs Gen. Joseph Dunford said the 2001 AUMF covered the U.S. attack, even though it was against the Syrian government in defense of a third party. Bobby Chesney discussed issues with that analysis but concluded that while “third-party self-defense is a tricky doctrinal extension, [it is] one that probably should be recognized at least in the specific scenario presented here: defense of a coalition partner in the context of integrated combat operations.” John Bellinger briefly reviewed Tuesday’s Senate hearing on a new AUMF, at which he testified.

On Tuesday, the Treasury Department expanded sanctions against Russia, following the Senate’s vote last week to pass its own set of Russian sanctions. Ed Stein provided a comprehensive review of the new and noteworthy aspects of that bill and analyzed—and dismissed—the House allegation that the bill originated in the wrong chamber.

On Wednesday, two major hearings took place on Russian election interference. Seven experts appeared before the Senate Intelligence Committee, including Department of Homeland Security official Jeanette Manfra, who testified that Russian government-affiliated hackers attempted to infiltrate election-related computer systems in 21 states. Here is the Washington Post on that portion of the hearing. Appearing before the House Intelligence Committee at the same time, former DHS Secretary Jeh Johnson testified that the Russian government had directed attacks to try to influence the U.S. election, though no votes were changed, reports NPR. On Lawfare, Ben Freeman suggested congressional steps to combat foreign interference in U.S. elections moving forward.

On Thursday, President Trump tweeted that he did not record conversations with former FBI Director James Comey: “With all of the recently reported electronic surveillance, intercepts, unmasking and illegal leaking of information, I have no idea…whether there are ‘tapes’ or recordings of my conversations with James Comey, but I did not make, and do not have, any such recordings.” The statement was a response to speculation that Trump recorded Comey without his knowledge—an idea Trump personally set off with a tweet in May stating Comey “better hope that there are no 'tapes'." On Friday, the New York Times reported that Trump seemed to indicate the threat of tapes was meant to influence Comey’s Senate testimony.

At Lawfare, Bob Bauer wrote that Trump’s tweets may now be part of a political strategy and possible legal defense to questions of collusion with Russia and obstruction of justice. Trump’s lawyers have repeatedly said that Trump has not been notified that he is under investigation. Paul Rosenzweig noted that while likely correct at this stage, this does not actually disprove the existence of an ongoing investigation.

Bauer also examined the tricky legal question of indicting a sitting president and at how the 25th Amendment could resolve an “incapacitated presidency.” Jonathan Rauch looked at Richard Nixon’s second-term approval rating to help explain why impeaching Trump would pose significant political challenges.

Chris Mirasola and Yishai Schwartz provided summaries of the 18 recently released FISA Court opinions regarding Section 702. They primarily addressed targeting and Fourth Amendment compliance. Thorsten Wetzling gave a detailed account of recent German intelligence reforms that dealt with issues similar to those now shaping the Section 702 debate.

The Supreme Court released a major ruling this week in Ziglar v. Abbasi. In a 4-2 decision, it determined that the individuals rounded up and detained in a Brooklyn prison after 9/11 could not sue government officials for alleged Fifth Amendment violations, including physical abuse, in a Bivens action. Alex Loomis provided a summary of the case. Steve Vladeck argued that the normative case against Bivens in Justice Kennedy’s majority opinion was internally incoherent and thoroughly flawed from a national security standpoint.

Vladeck and Chesney discussed Ziglar, the strikes in Syria, and the Travel Ban litigation in the National Security Law Podcast:

Matthew Kahn posted the Lawfare Podcast, featuring Jack Goldsmith’s interview with Daniel Drezner about his new book, The Ideas Industry: How Pessimists, Partisans, and Plutocrats are Transforming the Marketplace of Ideas.

Stewart Baker posted the Steptoe Cyberlaw Podcast where the crew discussed the tough Russia sanctions, Section 702 renewal, North Korean links to the WannaCry cyberattack, and more:

There was no Rational Security recording this week, but it will return next week.

Kemal Kirişci discussed Turkey’s role in managing the refugee crisis, particularly in addressing an influx of non-Syrian asylum seekers.

Stephanie Leutert reported on how climate change has increased migration from Central America by eroding traditional sources of economic security like farming. She argued the U.S. should help these nations build climate change resiliency, and that this could improve U.S. security in turn.

In the Foreign Policy Essay, Kim Cragin examined how the U.S. could help allies build law-enforcement capacity, subsequently helping to prevent terrorism abroad and in the U.S.

Peter Margulies wrote that containing Iran requires the U.S. to make tangible gains on the ground coupled with moral legitimacy based on international norms. And Ashley Deeks wrote that Congress has an unexpected, and expanding, role as an international law defender.

Erica Gaston analyzed how an expanding understanding of soldiers’ individual and unit self-defense rights could lead to increased use of force and erode domestic restrictions against armed conflict.

In Water Wars, Jared Drummilt and Eliot Kim reported that discussions at the inaugural U.S.-China Diplomatic and Security Dialogue failed to move the needle on the nations’ positions on the South China Sea dispute. Julian Ku discussed potential legal and diplomatic consequences of a more aggressive U.S. stance against Chinese expansion in the region.

Elsa Kania examined strategic implications of China’s growing capability in the artificial intelligence field.

Udi Greenberg reviewed The Emergence of Globalism: Visions of World Order in Britain and the United States, 1939-1950 by Or Rosenboim.

And that was the week that was.