The Week That Was

The Week That Was: All of Lawfare in One Post

By William Ford
Saturday, February 3, 2018, 8:10 AM

Benjamin Wittes argued that efforts by President Trump and Rep. Devin Nunes to discredit Deputy Attorney General Rod Rosenstein threaten the independence of and public trust in federal law enforcement.

Quinta Jurecic and Wittes explained how the heads of the House and Senate intelligence committees should respond to the controversial Nunes memo alleging surveillance abuses by federal law enforcement. Gen. Michael Hayden asked why the chiefs of intelligence agencies have remained silent about the Nunes memo as its release became inevitable. Molly Reynolds dissected the obscure House rule that allowed Congress to release the Nunes memo. Jurecic posted the transcript of the House intelligence committee’s meeting on Jan. 29 about the Nunes memo and summarized the meeting, and Orin Kerr argued that the legal premise that underpinned Republicans’ efforts to release the memo was dubious.

Wittes shared this week’s Rational Security: the “State of the #Memo” edition:

When it finally came out, Matthew Kahn posted the Nunes memo, which was released by the majority staff of the House intelligence committee on Friday. Jurecic compiled a collection of notable responses to the document.

And Wittes shared a special edition of the Lawfare Podcast:

Bobby Chesney and Steve Vladeck posted a special edition of the National Security Law Podcast about the document:

Lawfare's editors posted a timeline documenting the unusual behavior of House intelligence committee chairman Devin Nunes throughout the past year: all the Nunes that's fit to print.

And Jurecic, Shannon Togawa Mercer and Wittes analyzed the memo.

But the memo wasn't the only news Lawfare covered this week.

Elizabeth McElvein observed that a majority of Americans have faith in the intelligence community and believe the evidence of Russian interference. She wondered, however, whether Americans who remain undecided about the special counsel investigation will be swayed by attacks on federal law enforcement from Congress and the White House.

Jack Goldsmith pondered whether there is any coincidence in the recent spate of stories painting White House counsel Donald McGahn in a different, more positive light.

Responding to FBI deputy director Andrew McCabe’s departure from the bureau, Wittes remarked that McCabe has served the public honorably and “deserves the benefit of every doubt” until evidence of wrongdoing emerges. Stewart Baker offered a bleaker perspective on McCabe’s departure.

Goldsmith explained the system of checks and balances that make the Justice Department and the FBI simultaneously independent of and accountable to the president.

The White House declined to impose new sanctions on Russia this week. Megan Reiss argued that Congress should closely examine the Trump administration’s claim that such sanctions are unnecessary. Chesney examined the statutes relevant to the decision.

Lawfare's Middle East coverage was roaring too.

J. Dana Stuster posted this week’s Middle East Ticker, which discusses U.S. policy in Syria, President Sisi’s opposition in Egypt’s upcoming presidential election, and the disintegration of the pro-government coalition in Yemen. Rao Komar argued that the Trump administration’s strategy in Syria is entirely unrealistic.

Daniel Byman expressed his skepticism about the expansive claims made in a Politico report alleging that the Obama administration adopted a soft stance toward Hezbollah during the Iran deal negotiations. Additionally, Byman addressed some of the important questions the report raised.

Jacob Zenn explained al-Qaeda’s role in the formation of Boko Haram. 

Responding to a bill introduced to the Knesset that would allow Israeli military courts to sanction the execution of convicted terrorists, Liron Libman provided an overview of the history and current legal status of the death penalty in Israel.

Elena Chachko discussed the implementation of Israel’s anti-BDS travel ban and observed that there are not any convincing legal arguments to prohibit Israel from denying BDS activists entry.

C. Christine Fair asserted that the U.S. should pay closer to attention to violent extremism in Bangladesh given the strength and nature of support for political Islam there.

Julia Solomon-Strauss and Stephen Szrom discussed the latest developments in United States v. al-Nashiri.

Vanessa Sauter posted the Lawfare Podcast, in which Vladeck and Scott Anderson discuss the intricacies of United States v. Dalmazzi and Vladeck’s experience arguing before the Supreme Court:

Chesney and Vladeck posted this week's regular episode of the National Security Law Podcast covering, among other topics, the State of the Union:

Kahn and Shannon Togawa Mercer highlighted the portions of the State of the Union that pertain to national security. Kahn shared President Trump’s executive order, announced during Tuesday night's speech, revoking President Obama’s decision to close the Guantanamo Bay detention facilities.

Stewart Baker shared this week’s Cyberlaw Podcast:

Paul Rosenzweig argued against a proposal currently under consideration by the Trump administration to nationalize the development of 5G network infrastructure.

Rosenzweig also posted the latest installment of Bits and Bytes, in which he shared news stories about privacy, security, and Chinese espionage cloaked in generosity.

Sauter shared the Lawfare Podcast—a recording of CIA director Mike Pompeo’s speech at the American Enterprise Institute last week. 

Matthew Waxman wrote about the legal considerations of threatening the use of force against North Korea.

Mercer shared the Defense Department’s 2018 Nuclear Posture Review.

Goldsmith identified five articles in the new issue of the Harvard National Security Journal that might interest Lawfare readers.

Sabrina McCubbin and Wittes submitted a Freedom of Information Act Request to determine if the federal government is hosting foreign visitors at the Trump International Hotel in Washington.

Waxman posted the full text of his review of Noah Feldman’s “The Three Lives of James Madison.”

And that was the week that was.