The Week That Was

The Week That Was: All of Lawfare in One Post

By William Ford
Saturday, January 27, 2018, 9:43 AM

On Thursday, the New York Times reported that President Donald Trump ordered the firing of Special Counsel Robert Mueller in June. Susan Hennessey, Quinta Jurecic and Benjamin Wittes reacted to the story.

Wittes posted a special edition of the Lawfare Podcast in which he discussed the Times story with Bob Bauer, Carrie Cordero, Jack Goldsmith and Steve Vladeck:

Bob Bauer argued that White House Counsel Donald McGahn protected the institution of the White House counsel when he threatened to resign rather than execute President Trump’s order to fire Mueller.

Sabrina McCubbin explained why the government shutdown would not halt the special counsel investigation.

Harry Litman argued that President Trump will not sit for an interview with the special counsel anytime soon, despite reports to the contrary.

Responding to President Trump’s vacillation on his intention to speak with the special counsel and his decision to ask FBI Deputy Director Andrew McCabe how he voted in 2016, Bauer posited that we may be witnessing the “slow but steady deterioration” of the norm that the president is not above the law.

Goldsmith and Wittes lauded FBI Director Christopher Wray for his defense of the bureau’s institutional integrity in the face of political pressure from the president and the attorney general, who wanted him to remove McCabe.

Jurecic argued that we should view Rep. Devin Nunes’s classified memo on alleged government surveillance abuses as yet another element of the cycle of distraction aimed at drawing attention away from the special counsel investigation.

Jurecic and Wittes investigated whether Nunes’s republican colleagues on the House intelligence committee will stand by the veracity of the chairman’s memo on alleged government abuses. Jurecic and Wittes will update ther piece as they recieve responses from members of the committee.

Hennessey and Shannon Togawa Mercer argued that it would be reckless to release the Nunes memo, especially before following proper procedure to take national security equities into account.

I posted the Justice Department’s letter to Nunes regarding the memo.

In anticipation of Judge Tanya Chutkan’s ruling in Doe v. Mattis, Robert Chesney discussed whether the transfer of Doe might be prohibited by the Supreme Court’s ruling in Valentine v. United States or permitted by its ruling in Munaf v. Green.

Jurecic posted Judge Chutkan’s latest ruling in Doe v. Mattis, in which the judge decided not to enjoin the transfer of Doe but specified that the government must report the transfer to the court and the ACLU exactly three days in advance of its execution.

Responding to Judge Chutkan’s decision in Doe v. Mattis, Chesney agreed with Chutkan’s ruling not to block the transfer of Doe but expressed concerns about the way in which the ruling discussed the Valentine precedent.

Evelyn Douek and Ed Stein summarized a report issued by the Democrats on the Senate Foreign Relations Committee entitled “Putin’s Asymmetrical Assault on Democracy in Russia and Europe: Implications for U.S. National Security.”

In the first essay of a three-part series, Matthew Waxman reviewed Noah Feldman’s “The Three Lives of James Madison” and explored Madison’s theory of war powers.

In his second essay, Waxman explained how many aspects of Madison’s theory of war powers failed in practice, both when he was president and before.

In his third essay, Waxman extracted lessons for current debates about war powers from Madison’s theory of war powers and their application. He posits that “congressionalists” overemphasize the importance of the Declare War Clause and Madison’s support for it.

Audrey Alexander and William Braniff argued that removing terrorist-linked accounts and propaganda from the Internet is not enough to stop the effectiveness of the propaganda; they offer a different solution to the problem.

Charles Kurzman asserted that the public needs more data about terrorism prosecutions so that researchers can create a more accurate picture of violent extremism in America. To that end, Kurzman submitted a FOIA request to the Executive Office of the United States Attorneys to start identifying all terrorism prosecutions including domestic terrorism cases.

Russell Spivak summarized the petition submitted by the Center for Constitutional Rights to the federal district court for the District of Columbia for a grant of habeas on behalf of 11 Guantanamo Bay detainees who have been held without charge or trial for years—many for almost 15 years or more.

Paul Rosenzweig contended that the government shutdown distracted America from far more important issues, such as Turkey’s invasion of northern Syria to attack the Kurdish YPG militia.

In this week’s Middle East Ticker, J. Dana Stuster addressed Turkey’s invasion of northern Syria to fight U.S.-backed Kurdish militias, international reactions to Vice President Mike Pence’s visit to Israel, and Egypt’s upcoming presidential elections in March.

Colin Clarke opined that the U.S. should devise its own gray zone strategy in Syria in order to counteract Iran’s burgeoning influence.

Shehab Makahleh and Alex Vatanka discussed recent shifts in Jordanian foreign policy, which include détente with Ankara, outreach to Tehran and a new willingness to defy Riyadh.

Timothy Saviola and Nathan Swire collated the latest news, analysis and opinions related to ongoing tensions in the South and East China Seas in the latest installment of our Water Wars series.

Megan Reiss dissected the results of Lawfare’s survey examining Americans’ views on sanctions, finding that support for sanctions wavers when the measures could impact the U.S. economy.

On the Lawfare Podcast, Shaun Walker and Alina Polyakova discussed Walker's new book “The Long Hangover: Putin’s New Russia and the Ghosts of the Past.” Shaun Walker is the Guardian’s Moscow correspondent.

Vanessa Sauter posted the newest Lawfare Podcast, in which Togawa Mercer discussed Hawaii’s early-warning missile false alarm with experts on homeland security, federal emergency management and U.S.-North Korea relations:

Stewart Baker posted this week’s Cyberlaw Podcast.

Chesney and Vladeck posted this week’s National Security Law Podcast.

Wittes shared this week’s Rational Security, featuring discussions of Christopher Wray's resistance of administration pressure to fire Andrew McCabe, news of Mueller’s interviews with Jeff Sessions and Jim Comey, and Rex Tillerson's new strategy in Syria:

McCubbin summarized Jewel v. NSA and the latest development in the case, reported by Politico on Jan. 19, that the NSA accidentally deleted surveillance data directly related to Jewel in violation of a 2014 court order that required the NSA to preserve the now-deleted data.

Jordan Brunner summarized the Kaspersky Lab’s most recent filing against the Department of Homeland Security. The department designated Kaspersky’s software as an “information security risk” and prohibited its use on all federal government computer systems.

And that was the week that was.