The Week That Was

The Week That Was: All of Lawfare in One Post

By Garrett Hinck
Saturday, December 9, 2017, 6:59 AM

On Monday, the Supreme Court stayed the partial injunctions against the revised travel ban. Matthew Kahn posted the orders. Peter Margulies detailed the context for the orders and argued that the decision was not a judgment of the ban’s ultimate legality. Josh Blackman disagreed, arguing that the government will prevail against challenges to the ban.

Margulies summarized oral arguments at the Ninth Circuit Court of Appeals in Hawaii v. Trump’s challenge to the travel ban order.

Bob Bauer discussed how the Flynn plea deal relates to other lies from Donald Trump associates and the special counsel investigation’s focus on collusion.

Benjamin Wittes posed five questions for Alan Dershowitz to answer about his argument that the Russia investigation is the “criminalization of political differences.”

Josh Blackman analyzed the claim that the president cannot obstruct justice. Wittes disagreed in part with Blackman’s analysis, arguing that the president can obstruct justice in the context of carrying out his constitutional duties.

Daniel Hemel and Eric Posner argued that courts would construe the Logan Act narrowly to limit its scope they ever applied it.

Jack Goldsmith defended FBI Director Christopher Wray and Rod Rosenstein’s responses to attacks on their workforces from Trump. Matthew Kahn argued that Congress should help Wray rebuke the president’s attacks on his agency. On Thursday, Kahn posted the video and testimony from Wray’s testimony before the House Judiciary Committee.

Wittes shared the “When You’re the President They Let You Do It” edition of Rational Security:

Mieke Eoyang, Ben Freeman and Benjamin Wittes analyzed the November polling data on confidence in government on national security matters.

Catherine Padhi explained the law and history of federal states of emergency.

J. Dana Stuster updated the Middle East Ticker, covering the death of the ex-Yemeni president, the Jerusalem embassy announcement, and the trial of Reza Zarrab.

Vanessa Sauter posted the livestream of President Trump’s statement recognizing Jerusalem as Israel’s capital.

Dan Byman suggested that the split between al-Qaeda and Syria’s Jabhat al-Nusra was more of an acrimonious divorce than an amicable parting.

Jesse Lempel explained how Tier III terrorist designations work and examined the dispute between the courts and the administration on the designation’s proper scope.

Elena Chachko discussed the extraordinary position of the Israeli Attorney General on Israel’s settlement regularization law.

Robert Chesney argued that the government's arguments in ACLU v. Mattis raise troubling questions about the government’s ability to block the exercise of the writ of habeas corpus.

James Pfander reviewed Amanda Tyler’s new book on the history of the writ of habeas corpus in war.

Chesney and Steve Vladeck posted the National Security Law Podcast, covering the Flynn plea deal, ACLU v. Mattis and Supreme Court developments:

Shreve Ariail discussed the consequences of public misunderstanding surrounding the FISA Amendment’s Section 702 program and its reauthorization.

Stewart Baker shared the Cyberlaw Podcast, featuring an interview with Susan Hennessey and Andrew McCarthy on unmasking and FISA Section 702:

Baker defended expanding protections in the 702 reauthorization against “unmasking” and the leaking of intelligence information.

Vanessa Sauter posted the criminal information and plea agreement from the case against an NSA employee who took classified documents to his home.

Nicholas Weaver asked why the NSA’s investigations into the Shadow Brokers and the Vault 7 leaks have not yet led to any arrests.

Evelyn Douek discussed how fake audio and video content could exacerbate the problems of misinformation and fake news.

Eliot Kim updated Water Wars, covering the ASEAN summit and Japan-China maritime talks.

Vanessa Sauter shared the Lawfare Podcast, featuring audio from an event with Bruce Riedel on his new book about the U.S. and Saudi Arabia:

In the Foreign Policy Essay, David Bosco outlined a strategy for the U.S. to navigate the legal and political complexities of the International Criminal Court case that is investigating U.S. activity in Afghanistan.

And that was the week that was.