The Week That Was

The Week That Was: All of Lawfare in One Post

By Garrett Hinck
Saturday, December 2, 2017, 7:53 AM

On Friday, Michael Flynn, the former national security adviser, pleaded guilty to lying to the FBI about meetings with Russian ambassador Sergei Kislyak that took place during the presidential transition. Matthew Kahn posted the charges, Flynn’s plea agreement, and the statement of the offense. Susan Hennessey, Matthew Kahn, Vanessa Sauter, Shannon Togawa Mercer and Benjamin Wittes analyzed the revelations and their implications for the Russia investigation.

Wittes also posted a special edition of the Lawfare Podcast, featuring a discussion of of the Flynn case with Lawfare editors and contributors:

Bob Bauer argued that the Russia investigation does not imply a “criminalized politics” as Alan Dershowitz has worried.

On Wednesday, the Supreme Court heard arguments in Carpenter v. U.S., a case about whether the government needs to obtain a warrant to get historical cell-site location data. Previewing the case, Orin Kerr argued that that the Fourth Amendment does not guarantee a general right to be sure against government surveillance. Paul Rosenzweig defended the application of the mosaic theory of the right to privacy in light of the oral arguments.

After the Court heard arguments, Kerr and Benjamin Wittes hosted a Facebook “live” event with initial reactions. And Wittes posted their discussion on the Lawfare Podcast:

Kendall Howell analyzed how the Fifth Amendment applies to law enforcement demands to decrypt devices using passwords and biometrics.

Kerr argued that Microsoft should have challenged the All Writs Act instead of the Stored Communications Act in U.S. v. Microsoft.

Clare Duncan detailed Yemen’s recent history and the developments that have led to its disastrous civil war. Megan Reiss discussed how new sanctions on an Iranian counterfeiting operation could have implications for Iranian involvement in Yemen.

J. Dana Stuster updated the Middle East Ticker, covering the attack on a mosque in Sinai, U.S.-Turkey tensions and the fallout from the Saudi power play.

Curtis Bradley and Jack Goldsmith discussed whether Congress cares that the president has an enormous amount of discretion to interpret international law.

Garrett Hinck posted the government's response to a court order in ACLU v. Mattis to say whether the unnamed American citizen being held as a enemy combatant has invoked his right to habeas corpus. He also posted the ACLU's reply.

Robert Chesney and Steve Vladeck shared the National Security Law Podcast, featuring discussion of Carpenter and a preview of the hearing in ACLU v. Mattis:

Yishai Schwartz summarized this week’s military commission hearings in U.S. v. al-Nashiri for Nov. 13 and Nov. 14 - 16.

Nicholas Weaver emphasized the seriousness of the danger from autonomous weapons systems such as “slaughterbots.”

Stewart Baker shared the Cyberlaw Podcast, featuring an interview with Rob Reid about bioterrorism and artificial intelligence:

Cameron Kerry discussed how the Cyber Diplomacy Act of 2017 could strengthen the U.S.’s international cybersecurity efforts.

Jack Goldsmith and Robert Williams argued that the recent indictment of three Chinese hackers shows the 2015 U.S.-China cybersecurity agreement is weakening.

Susan Hennessey shared her testimony from a congressional hearing on the cybersecurity of voting machines.

Hayley Evans summarized the UK’s new data protection bill and its implications for cross-border data protection regulations.

Evans and Shannon Togawa Mercer discussed the effect of Brexit on U.K-EU data protection regulations.

Benjamin Wittes posted the “Power of Delusional Thinking” edition of Rational Security:

Scott Anderson and Schwartz explained the potential consequences if the president does not waive the Jerusalem Embassy Act.

Madiha Afzal explained why the Trump’s administration’s strategy in Pakistan is likely going to amount to failure.

Vanessa Sauter shared the Lawfare Podcast, featuring an interview between Alina Polyakova and Arkady Ostrovsky on Russia’s Far East:

Shannon Togawa Mercer posted the House Permanent Select Committee on Intelligence’s version of the FISA Amendments reauthorization bill.

Judge Brett M. Kavanaugh reviewed Judge David Barron’s Waging War.

Benjamin Wittes posted the “Mother May I Launch a Missile” edition of Rational Security:

In the Foreign Policy Essay, Kim Cragin argued that foreign fighters transferred to third countries that are not their homes are a major security risk.

Matthew Kahn explained the main provisions of the Federal Vacancies Reform Act and how it affects acting officials currently serving in the administration.

And that was the week that was.