The Week That Was

The Week That Was: All of Lawfare in One Post

By William Ford
Saturday, March 24, 2018, 7:43 AM

Quinta Jurecic and Benjamin Wittes observed that the quesiton of whether the public will ever know what Bob Mueller knows depends on how Mueller views his role as special counsel. In response to Jurecic and Wittes’s contention in the piece that the special counsel can do “any kind of reporting that he wants," Jack Goldsmith and Maddie McMahon countered that the special counsel regulations preclude Mueller from pursuing more aggressive forms of disclosure, such as a Kenneth Starr-like report.

Orin Kerr challenged Andrew McCarthy’s assertion that the special counsel flouted Justice Department policy by failing to secure a guilty plea from Rick Gates on the most serious charge levied against him.

Steve Vladeck examined the legal questions pertinent to legislation seeking to bar the president from firing the special counsel.

Robert Chesney and Vladeck posted the National Security Law Podcast, in which the pair discuss the firing of Andrew McCabe and, among other things, legislation permitting judicial review of any attempt to fire Mueller:

Bob Bauer suggested that McCabe’s dismissal may indicate that the president’s attorneys will enable him, not resist him, as he looks to take action against the special counsel. 

Jurecic and Wittes contended that any person confidently proclaiming the merits of Andrew McCabe’s removal does so without the specific facts necessary to speak with such confidence—but that both the timing and the president's pressure on the bureau on the matter are extremely fishy.

In broader L’Affaire Russe news, Matthew Kahn posted the findings and recommendations issued by the House intelligence committee in the wake of its Russia investigation.

Alina Polyakova asserted that an all-out Russian attack on critical Western infrastructure seems inevitable.

Kahn posted the Senate intelligence committee’s report on election security. William Ford posted the livestream of and prepared testimony from the intelligence committee’s hearing on the subject.

Molly Reynolds flagged the sections of the omnibus spending bill that may be of interest to Lawfare’s readers, including provisions concerning election security and countering Russian influence. Paul Rosenzweig praised Congress’s $380 million provision in the omnibus bill to enhance election security. 

Alina Polyakova argued that Russia’s presidential election elevated Putin from a president to a vozhd—a Stalinesque figure—with what seemed like the consent of the West.

Kahn shared the Lawfare Podcast, a conversation between Alina Polyakova and Liza Osetinskaya on journalistic freedom under Putin: 

In this week’s Middle East Ticker, J. Dana Stuster discussed Saudi crown prince Mohammed bin Salman’s trip to the U.S., the future of the Iran deal after the removal of Rex Tillerson, Turkey’s capture of Afrin, and the situation in Eastern Ghouta.

Shibley Telhami argued that Mohammed bin Salman’s forceful foreign policy is the product of the American invasion of Iraq.

Ford posted the live video of and prepared testimony from the House Foreign Affairs Committee hearing on U.S.-Saudi Arabia nuclear cooperation.

Scott Anderson and Molly Reynolds suggested that opponents of U.S. support for Saudi Arabia’s campaign in Yemen should take solace in the political impact the failed Senate Yemen resolution might still have.

Kahn announced the newest paper in Lawfare’s Research Paper Series: Matthew Levitt’s “In Search of Nuance in the Debate over Hezbollah’s Criminal Enterprise and the U.S. Response.”

Ford shared the live video of and testimony from the House Foreign Affairs Committee hearing on the fiscal year 2019 foreign assistance budget.

Daniel Byman suggested that Hamas’s control of Gaza is the best option for Israel given the lack of better alternatives.

Russell Spivak summarized the latest filings submitted by Khalid Ahmed Qassim—a Guantanamo detainee entering his 16th year of detention—on his habeas claim.

Kahn posted the declarations released by Defense Secretary James Mattis, Acting Defense Department General Counsel William Castle, former Military Commissions Convening Authority Harvey Rishikof, and legal adviser Gary Brown on Rishikof and Brown’s dismissal. Steve Szrom summarized the declarations.

Kahn posted the full audio of oral argument in Al-Alwi v. Trump. Shannon Togawa Mercer summarized the argument.

Michael Webert, Molly Reynolds, and Scott Anderson scrutinized the Trump administration’s compliance, or lack thereof, with the reporting requirements mandated by the National Defense Authorization Act.

Allison Murphy and Ariela Rosenberg outlined how Congress can respond to the administration’s lack of transparency on the legal basis for its actions in Syria.

Matthew Waxman argued that John Bolton, who will replace Gen. H.R. McMaster as the president’s national security adviser, brings to the administration’s national security team a fearsome competence that has been lacking.

David Bosco examined the implications of Bolton’s appointment for the International Criminal Court’s upcoming investigation into U.S. conduct in Afghanistan and at several “black sites” in Europe.

Jordan Brunner summarized Congress’s first authorization of the Department of Homeland Security since its establishment in 2003.

Benjamin Wittes shared this week’s Rational Security Podcast, the “Shane-less” Edition:

Thomas Renard and Rik Coolsaet detailed the meticulous steps Belgium has taken since the 2016 ISIS attack in Brussels to improve the country’s counterterrorism capacity; the pair argue that other countries should now emulate Belgium’s counterterrorism approach.

In this week’s Cyberlaw Podcast, Stewart Baker interviewed Pete Chronis, Turner’s Chief Information Security Officer, and provided a news roundup:

Richard Harknett reviewed U.S. Cyber Command’s new command strategy.
Francois Delerue and Aude Gery examined the main points on international law developed in France’s Strategic Review of Cyberdefense.

Andrew Keane Woods summarized the Cambridge Analytica-Facebook snafu and examined its legal implications.

Alan Rozenshtein argued that big tech companies’ period of insulation from government regulation appears to be coming to a close.

Robert Chesney explored the legality of providing communication services built to stymie government access.

Jennifer Daskal and Peter Swire rebutted Neema Singh Guliani and Naureen Shah’s response to their contention that the CLOUD Act will improve privacy and civil liberties protections.

Wenqing Zhao and David Stanton posted SinoTech, which explored President Trump’s decision to block Broadcom’s attempted takeover over Qualcomm and the president’s expected announcement of tech-related tariffs and penalties against China.

Timothy Meyer and Ganesh Sitaraman argued that the president can begin a trade war without the consent of Congress because free trade advocates built the system that way.

Julian Ku contended that the Taiwan Travel Act should be considered legally binding legislation that Congress can enforce through oversight.

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

Ford posted the livestream of and testimony from the House Foreign Affairs Committee hearing on China’s foreign influence operations.

Andrew Yeo argued that pursuing North Korean denuclearization requires the U.S. to confront the Kim regime’s human rights violations.

Ford also posted the livestream of and prepared testimony from the Senate Armed Services Committee hearing on the Energy Department’s atomic energy defense programs.

And Kahn posted the Lawfare Podcast, in which he speaks with John Feerick, an actual framer of the Constitution—or, at least, the 25th Amendment to it:

And that was the week that was.