The Week That Was

The Week That Was: All of Lawfare in One Post

By Rachel Bercovitz
Saturday, May 12, 2018, 10:01 AM

On Friday, Benjamin Wittes interviewed former FBI director and deputy attorney general James Comey before a live audience at the Brookings Institution for the Lawfare Podcast:

Gina Haspel, acting director of the CIA, testified on Wednesday before the Senate intelligence committee in connection with her nomination to be director of the CIA.

In advance of the hearing, Scott R. Anderson and Susan Hennessey laid out 20 questions lawmakers would do well to pose to Haspel, whose confirmation, they argued, hinged on the questions asked and answers given. On Tuesday’s Lawfare Podcast, Benjamin Wittes and the Washington Post's Shane Harris evaluated possible arguments in defense of and against Haspel’s confirmation.

Wittes later explained his conditional support for Haspel. Stephen Rickard and Elisa Massimino responded to Wittes, outlining their view that Haspel’s involvement in the CIA’s rendition, detention and interrogation (RDI) program makes her unfit for the job. Matthew Kahn posted video of the hearing, along with Haspel’s opening statement, responses to committee’s pre-hearing questions and responses to the questionnaire for presidential nominees. Wittes put together a special edition of the Lawfare Podcast, a 75-minute recording of all the essentials from Haspel’s testimony.

On Tuesday, President Trump announced that the U.S. would withdraw from the Joint Comprehensive Plan of Action (JCPOA), the multilateral framework for restricting Iran’s nuclear program. Leading up to the announcement, Suzanne Maloney addressed the efforts of Israeli and European leaders to sway President Trump’s decision and considered the consequences of U.S. withdrawal for the accord and transatlantic alliances. Robert Einhorn suggested that the Israeli-acquired intelligence from Iran’s nuclear-weapons-development archives could be used by the International Atomic Energy Agency and national authorities to help salvage the agreement.

After Trump's announcement, Elena Chachko outlined the legal components to the U.S. withdrawal, including the reimposition of statutory sanctions waived under the agreement. Dana Stuster discussed the immediate and long-term consequences of withdrawal, noting that there appears to be no U.S. strategy for moving forward the administration’s reported aim of brokering a new deal. Meanwhile, Jack Goldsmith argued that Trump’s decision is a direct outgrowth of the way the Obama administration structured the Iran deal—as a political commitment rather than a binding agreement under international law.

This week’s episode of Rational Security waded into the Iran deal, Haspel’s nomination hearing and more.

On Monday, the U.S. Court of Appeals for the D.C. Circuit affirmed Judge Tanya Chutkan’s April 19 transfer injunction in Doe v. Mattis. Kahn posted the court’s ruling that the U.S. cannot involuntarily transfer John Doe—a dual U.S.-Saudi citizen—to Saudi Arabia. Bobby Chesney offered his preliminary thoughts. Quinta Jurecic posted the court’s opinion, unsealed on Wednesday. Chesney walked through the majority’s ruling, while Steve Vladeck critiqued Judge Henderson’s dissent. Chesney suggested that sufficient evidence regarding Doe has emerged to make prosecution a viable option.

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

In this week’s Foreign Policy Essay, Audrey Alexander and Helen Christy Powell advocated a holistic approach to combating extremist content online.

Emily Whalen discussed the domestic implications of Lebanon’s May 6 elections, noting that the results would expose the depths of simmering tensions between Lebanese elites and a frustrated public.

Kahn posted Saturday’s Lawfare Podcast, featuring Wittes in conversation with North Korea experts Mira Rapp-Hooper and Steph Haggard. The trio discussed the context surrounding and expectations for the upcoming U.S.-North Korea summit, set for June 12 in Singapore.

Reflecting on the Supreme Court’s April 24 decision in Jesner v. Arab Bank, PLC, Pierre-Hugues Verdier and Paul Stephan proposed an alternative, sanctions-based strategy for enforcing corporate human rights compliance abroad.

Shannon Togawa Mercer and Ashley Deeks highlighted the U.K. as a case study for how privacy-conscious states are regulating facial recognition software. They find that U.K. law enforcement has relied on existing codes of conduct in the absence of specific regulation.

Responding to an April 25 post by Chesney, Elizabeth Goitein fleshed out her view that the Corker-Kaine AUMF would lead the U.S. to claim legal justification for an attack on Iran. Chesney replied, arguing that the Corker-Kaine legislation is no more likely to be used as justification for an attack on Iran than have been the 2001 and 2002 AUMFs.

Wittes announced that former FBI general counsel James Baker would join Brookings and Lawfare.

Bob Bauer critiqued Rudy Giuliani’s revised statements that attorney Michael Cohen’s payment to the actress Stormy Daniels did not implicate campaign finance laws.

Wittes flagged his lawsuit against the State Department alleging a Freedom of Information Act violation for its failure to respond to a records request. Wittes seeks records related to possible State Department payments or reimbursements of foreign officials’ stays at the Trump International Hotel in Washington.

Mieke Eoyang, Ben Freeman, Ryan Pougiales and Wittes discussed the latest findings from their polling project measuring public confidence in government institutions on national security matters. The April data addresses public perceptions of the special counsel investigation, of Haspel’s nomination to be CIA director, and of how the Democratic and Republican parties and the president have dealt with national security matters.

Jesse Sowell discussed the advantages and limitations of reputation-based mechanisms for enforcing internet security. Chris Meserole outlined the mechanisms that fuel the spread of misinformation on Twitter and strategies for countering them. Ingrid Wuerth evaluated whether U.S. states could bring suit against Russia for election-related breaches under the Supreme Court’s original jurisdiction.

Kahn posted the ABA Standing Committee on Law and National Security’s report from a Dec. 7 workshop on reforming the military commissions at Guantanamo Bay.

Stewart Baker posted the Cyberlaw Podcast, which featured an interview with New Yorker staff writer Nicholas Schmidle.

John Rogan put forth recommendations for improving the White House’s contingency plans for presidential succession and inability.

Kahn posted Judge Thomas Hogan’s one-page judgment denying Khalid Ahmed Qassim’s petition for a writ of habeas corpus in Qassim v. Trump, filed in the U.S. District Court for the District of Columbia.

Paul Rosenzweig and Megan Reiss explored John Bolton’s reported intent to eliminate the cybersecurity coordinator position (“cyber czar”), suggesting that the move “accurately reflects the diminished importance of cybersecurity as a national issue.”

And that was the week that was.