The Week That Was

The Week That Was: All of Lawfare in One Post

By William Ford
Saturday, April 21, 2018, 9:04 AM

On Friday, April 13, President Trump announced that the U.S., France, and the U.K. launched a series of airstrikes in Syria in response to the Assad regime’s use of chemical weapons in the formerly rebel-held town of Douma.

Quinta Jurecic shared the transcript of the president’s remarks on the airstrikes. Matthew Kahn posted Trump’s letter to the speaker of the House and the president pro tempore of the Senate notifying them of U.S. military engagement in Syria.

Jack Goldsmith and Oona Hathaway argued that there is neither domestic nor international legal authority for the U.S. airstrikes in Syria. John Bellinger supplemented Goldsmith and Hathaway’s points with his own thoughts on the lack of legal basis for the strikes, particularly the lack of basis in international law. Unconvinced by these contentions, Charlie Dunlap posited that there are plausible legal arguments for the Syria strikes.  

Laurie Blank suggested that the administration’s moral justification for the strikes attempts to create lawfulness where there is none.

Keith Whittington argued that Congress's failure to debate whether the U.S. should use military force in Syria marks the most recent abdication in a long line of abdications of the body’s constitutional responsibility to determine whether the U.S. should go to war with another nation. Jack Goldsmith suggested that constitutional law and international law share similar uncertainties about the meaning and efficacy of war powers.

Matthew Kahn posted the draft 2018 authorization for the use of military force against designated terrorist groups that Sens. Corker, Kaine, Flake, Coons, Young, and Nelson introduced. Robert Chesney analyzed the most important sections of the draft AUMF and the questions they raise. Describing the draft as a fast track to nowhere, Scott Anderson and Molly Reynolds argued that the “expedited procedures” at the heart of the draft do little to alter the balance of power between Congress and the White House.

Matthew Kahn posted the Justice Department’s notice to the D.C. federal district court of the government’s intention to transfer John Doe, an American national held in U.S. military prison in Iraq within 72 hours. William Ford posted the filing submitted by the ACLU in response, which sought to block Doe’s transfer. Quinta Jurecic added Judge Tanya Chutkan’s ruling in the case, which enjoined Doe’s transfer to Saudi custody.

Harry Larson summarized the briefs submitted in defense of and in opposition to Mohammed al-Qahtani’s motion to compel the U.S. government to examine him to determine whether he is eligible for repatriation to Saudi Arabia. Al-Qahtani, an alleged 9/11 conspirator whom U.S. officials acknowledge suffered severe mistreatment, is currently detained at Guantanamo Bay.

Matthew Kahn shared the declassified CIA memo outlining deputy CIA director Gina Haspel’s involvement in the destruction of detainee interrogation tapes in 2005.

William Ford posted the ruling issued by a federal judge in Seattle leaving in place the court’s preliminary injunction against the president’s ban on military service by openly transgender individuals and declaring these individuals a protected class.

Robert Chesney and Steve Vladeck shared an episode of the National Security Law Podcast, which addressed exhaustively the events of last Friday, from the airstrikes on Syria to the inspector-general report on the allegations against former deputy FBI director Andrew McCabe, the raids on the home, hotel room, and office of Michael Cohen, the president’s longtime personal attorney, and concerns that the president will fire Deputy Attorney General Rod Rosenstein:

The following day, they posted a bonus episode of the podcast, in which the pair discuss the draft AUMF, new developments in Doe v. Mattis, and, among other things, the president’s decision not to impose new sanctions on Russia:

Sabrina McCubbin summarized the inspector general's report on the allegations against Andrew McCabe and the response issued by McCabe’s lawyer. Stewart Baker argued that McCabe's conduct, while bad, is relatively common and flowed from the fact that the FBI and the Justice Department are the subjects of intense partisan scrutiny and ire.

On Thursday, April 19, the Justice Department sent the House Judiciary Committee copies of the memos that former FBI director James Comey wrote about his interactions with President Trump. Quinta Jurecic posted the transmission letter sent by the Justice Department and the now-public copies of Comey’s memos.

Benjamin Wittes offered several reflections on Comey’s new book, supplementing them with memories of his own interactions with the former FBI director, in an effort to point out things that reviews of Comey’s book might have missed.

Molly Reynolds delineated the procedural hurdles that might confront legislation to protect Special Counsel Robert Mueller.

In this week’s Middle East Ticker, J. Dana Stuster addressed U.S. strikes on Syria in response to the Assad regime’s chemical weapons attack on Douma, reports of a Libyan general’s death, and competition between Qatar and the United Arab Emirates for business and influence in Somalia.

Ariane Tabatabai dissected why Iran supports the Assad regime and the strategic and economic gains Tehran has reaped from the partnership.

Dror Michman and Yael Mizrahi-Arnaud argued that Iran will soon attack Israel over the escalations between the two countries in Syria.

Liron Libman examined whether the Israel Defence Forces acted appropriately and lawfully under international law in response to enormous protests along the Israel-Gaza border.

In response to the High Court of Ireland’s decision to refer questions about Facebook data transfers to the EU’s Court of Justice, Chris Mirasola summarized the history of the litigation, the current litigation, the questions referred to the Court of Justice, and the upcoming procedural steps.

Matthew Kahn shared the Supreme Court’s per curiam ruling in U.S. v. Microsoft, which declared the case moot in light of Congress’s passage of the Cloud Act.

Evelyn Douek argued that Facebook CEO Mark Zuckerberg’s confidence in the ability of artificial intelligence to regulate online hate speech is unfounded.

Catherine Padhi observed that Facebook does not have to remain neutral in order to maintain its immunity under Section 230 of the Communications Decency Act.

Stewart Baker posted the Cyberlaw Podcast, which consisted of a news roundup:

Matthew Kahn posted the Lawfare Podcast, a conversation between Megan Reiss, Benjamin Wittes, and Toomas Ilves, the former president of Estonia, on election interference, cybersecurity cooperation, and Ilves’s tenure as president: 

Kahn also posted the filing submitted by the Democratic National Committee alleging that Russia, the Trump campaign and associated individuals, and WikiLeaks conspired illegally to influence the outcome of the 2016 presidential election.

Susan Landau offered several ways the U.S. government can respond to the dangerous and evolving cybersecurity environment we now inhabit.

In this week’s Sino Tech, Wenqing Zhao and David Stanton examined the U.S.-China trade war over technology, with SenseTime becoming the highest valued AI startup in the world, and the further restrictions imposed by the U.S. on Chinese telecommunications companies. 

Elsa Kania contended that China remains reluctant to divulge how badly it wants killer robots.

Alan Stone reviewed Bandy X. Lee’s new book, “The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President.”

And Matthew Kahn posted this week’s Rational Security: The ‘I Don’t Get Confused’ Edition:

And that was the week that was.