The Week That Was

The Week That Was: All of Lawfare in One Post

By Yishai Schwartz
Saturday, April 5, 2014, 9:55 AM

Let’s begin with NSA news: Wells flagged a joint DNI and AG statement announcing that the government will seek a 90-day extension of the current 215 program as an interim measure pending reform legislation. He also posted some just-declassified FISC rulings related to NSA programs.

Ben did some armchair big data analysis about public interest in NSA, and he noted some recent statements that lend support to his observation last week that the President’s reform proposal might be a win-win for the intelligence and civil liberties communities. He also flagged an essay from law professor Geoffrey Stone reflecting on his newfound appreciation for NSA after his service as a member of the president's Review Group.

Ben and Matt Danzer gave us a primer on the contents of the House metadata collection reform bill. And Carrie Cordero breathed a sigh of relief that third party metadata storage is now off the table while outlining some of the challenges and unknowns that need to be answered as the metadata reform proposals continue to advance

John had a bit of a back and forth this week with Ryan Goodman at Just Security: John published a rejoinder to Goodman’s criticism of his PCLOB testimony that argued that, even if applied extraterritorially,  the ICCPR wouldn’t prohibit NSA surveillance on foreign nationals. Then after another response from Goodman, John published a further response arguing that the US has never accepted a right to privacy as customary international law and that a change in the US stance on the ICCPR would be bad for Senate ratification of the UN Convention on Persons with Disabilities.

On April 1, Wells and Ben broke the story of a shocking, one might even say mind-blowing, new NSA program.

Ritika posted this week’s Lawfare Podcast, an address by Assistant Attorney General for National Security John Carlin at a symposium at American University's Washington College of Law. Carlin discussed DOJ’s role in cybersecurity, especially cooperation with the private sector in this area. Later in the week, Wells noted Carlin's overwhelming Senate confirmation.

Stewart Baker posted the next episode of the Steptoe Cyberlaw Podcast. This episode features the regular cast of characters in dialog with special guest Michael Allen---former Majority Staff Director of the House intelligence committee and author of Blinking Red, the story of the creation of the Director of National Intelligence. They discussed recent events related to NSA, the CIA-SSCI spat, cybersecurity, copyrights, bitcoin and more.

Conferences. Ken flagged the WeRobot conference currently occurring at the University of Miami and explained why robotics are crucially related to national security law. Bobby let us know about a conference he is running in Austin on addressing current NSA controversies. Ben attended that one as well and noted a moment of levity from it.

In this week’s Foreign Policy Essay, RAND scholar Stephen Watts warns readers about the limits of a “small footprint” approach to American intervention abroad. From Jerusalem, I posted some reflections on the dilemma confronting Israel as it considers releasing terrorism prisoners for the sake of peace negotiations. And Ben uploaded audio from a Brookings event on the upcoming elections in and troop withdrawal from Afghanistan.

In Guantanamo news, Jane noted the DC Circuit’s affirmation of the district court’s denial of Abdullah’s motion to enjoin the U.S. government from detaining him in Abdullah v. Obama. And Ben noted yesterday's district court opinion dismissing the Bivens suit the ACLU brought over the Al Aulaqi drone strike.

Jack flagged Sean’s case note in the Harvard Law Review supporting the Second Circuit’s post-Kiobel decision (although not its reasoning) in Balintulo v. Daimler AG, and Steve invited responses to his draft of a law review article on the incoherence of the military exception to Article III.

From the world of cyber, Jack noted three recent speeches by Cybersecurity maven Dan Greer, and judging from the conclusion he posted, they are likely to be scary. And Paul kept us up to speed on recent developments---and upcoming Congressional hearings---on the transition of full authority over assigning internet numbers to ICANN. He also publicized the connection between Ben and James Madison.

Steve Aftergood gave a largely positive review to Rahul Sagar’s Secrets and Leaks: the Dilemma of State Secrecy. Sagar traces dilemmas of secrecy back to unresolved constitutional tensions and ultimately endorses some unauthorized leaks as essential to the American constitutional system. Although Aftergood takes issue with Sagar’s pessimism about systemic reform, he praises the book as nuanced, rigorous and self-critical.

Finally, Wells noted the SSCI’s vote to release its report on CIA interrogation and detention post-9/11, and posted statements from Senators Feinstein and Chambliss. The report now goes to the President for redactions.

And that was the week that was.