The Week That Was

The Week that Was: All of Lawfare in One Post

By Yishai Schwartz
Saturday, March 29, 2014, 9:55 AM

Let’s start with this week’s big terrorism trial news, the speedy conviction of Sulaiman Abu Ghaith, Osama Bin Laden’s son-in-law, in federal court. Ritika noted the verdict as it happened and linked to Ben Weiser’s coverage in the Times. She followed up with statements from Attorney General Eric Holder and Acting Assistant AG for National Security John Carlin. Holder’s statement, in particular, placed a noticeable emphasis on the precedent the conviction sets for successful civilian trials of terror suspects. Wells then reflected on the state of the current debate over terrorism trials in civilian courts, and concluded that the debate is pretty much over.

In Guantanamo news, Ben flagged a post by Marty Lederman over at Just Security noting the Supreme Court’s unusual repeated relisting of a pending Guantánamo habeas appeal in Hussain v. Obama.

FISA news: Ben welcomed the Chief Justice’s designation of Judge Thomas Hogan as the next presiding FISC judge. Wells linked to a Charlie Savage piece in the New York Times previewing the President’s proposal on for reforming (in fact, ending) the 215 program. He then flagged the announcements about both the President’s proposal and that of the House Intelligence Committee. A separate post links to the White House’s fact sheet for the Administration’s proposal. And after reviewing the proposal and reactions from the ACLU and NSA, Ben suggested that the President’s plan may end up as a win-win for civil liberties and the intelligence community.

With all the reform talk surrounding 215, some have raised concerns that public hasn’t been subjecting overseas surveillance to the same scrutiny. In response to a piece by Glenn Greenwald, Ben suggested that the distinction between metadata collection on citizens and foreigners is actually based on something pretty important, namely the law, which makes the former more questionable than the latter.

Ben’s post drew a reply from Ryan Goodman, who insisted that international law very well might limit collection on foreigners overseas as well. Ben then explained why he was unimpressed with Goodman’s evidence. Following up, Ashley argued that European countries’ current practices and the recent attempts to amend the ICCPR actually reinforces Ben’s point about the likely legality of metadata collection from foreign targets.

Also on NSA’s overseas surveillance: Jack reacted to David Sanger’s and Nicole Perlroth’s Times report on NSA’s successful infiltration of Chinese Telecommunications giant Huawei. He noted the report’s significance both in exposing the US to charges of hypocrisy and for what it says about modern-day publication norms.

The Times’ Huawei piece also offered Jack some extra ammunition for his response to some flabbergasting comments reportedly made by NYT reporter James Risen about the state of press freedom under the Obama Administration.

Stewart Baker posted the latest Steptoe Cyberlaw Podcast, where the regular team discusses NSA affairs, some current privacy litigation and more. The guest this week: Jim Lewis of the Center for Strategic and International Studies discussing cyberwar norms, post-Snowden diplomacy and upcoming cybersecurity legislation.

Paul noted the release of a handy new tracking device, “tile,” that demonstrates that the era of private mass surveillance is upon us. He also continued with his coverage of the transition of control over the internet’s naming authority from the US government to a non-profit, the Internet Corporation for Assigned Names and Numbers. In this post, he described what sort of standards we ought to measure ICANN’s governance against in order to be sure the transition hasn’t gone “awry.”

We also haven’t forgotten about Ukraine:

Ben uploaded this week’s Lawfare Podcast, in which NATO Secretary General Anders Fogh Rasmussen speaks to an audience at the Brookings Institution, and as expected, has a thing or two to say about recent events in Eastern Europe.

We also posted the transcript from Tuesday’s press conference with President Obama and Dutch Prime Minister Rutte, and pointed specifically to mentions of Crimea and NSA.

In this week’s Foreign Policy Essay, Brookings scholars Bruce Jones and Tom Wright address the current state of international order. They argue that the global economic order is on the whole strong (despite the ongoing effects of the global financial crisis), but that the international security situation is much more tenuous as great powers compete and the Middle East implodes.

Alan Rozenshtein reviewed Treasury's War: The Unleashing of a New Era of Financial Warfare, a new book by Julian Zarate, the Treasury Department’s first-ever assistant secretary for terrorist financing and financial crime. The book is part-memoir and part-history of the Treasury’s national-security activities in the first decade after 9/11, and Rozenshtein finds it to be a terrific starting point for consideration of some of the contentious questions about twenty-first century financial warfare. Given the current sanctions effort against Russia, the book is particularly timely.

Finally, Bobby raised the fascinating, and mostly unnoticed, question of whether current military action in Uganda violates the War Powers Resolution. He concluded that Congressional support for the effort was clear enough that nitpicking over when the WPR clocks starts is ultimately irrelevant. Bobby followed up by flagging the President’s letter to Congress where he asserts that ongoing actions are “consistent” with the WPR.

And that was the week that was.