The Week That Was

The Week That Was: All of Lawfare in One Post

By Rachel Bercovitz
Saturday, May 26, 2018, 10:19 AM

On Monday, the White House hosted a meeting with Deputy Attorney General Rod Rosenstein, FBI Director Christopher Wray, and Director of National Intelligence Dan Coats concerning the FBI’s use of a confidential source in its investigation of the Trump campaign. Quinta Jurecic and Benjamin Wittes offered the backstory to the unprecedented outing of the FBI informant. Matthew Kahn posted a statement released by the White House following the meeting, which called for the Justice Department inspector general to investigate “any irregularities” in the FBI’s conduct of the investigation and for Chief of Staff John Kelly to convene follow-up meetings to “review highly classified and other information” connected to the informant. After the meeting, Kahn posted a special edition of the Lawfare Podcast featuring Bob Bauer, Jack Goldsmith, David Kris and Benjamin Wittes on the developments.

The two meetings that took place Thursday involved law enforcement and intelligence officials and senior Democratic and Republican lawmakers, with introductory appearances by John Kelly and Emmet T. Flood, the new White House lawyer representing President Trump in the Russia investigation.

Bob Bauer argued that responsibility for Monday’s meeting—which he regarded as a profound violation of the norms governing presidential involvement in criminal investigations—falls to the President and his staff, not to Rosenstein. John Sipher argued that the recent moves by President Trump and senior Republican lawmakers will harm the U.S.’s ability to develop and recruit intelligence sources.

Samm Sacks outlined the Chinese government’s approach to cyber and information and communication technology (ICT) policies, and presented recommendations for how the U.S. should respond.

On May 25, the EU General Data Protection Regulation (GDPR) went into effect. Shannon Togawa Mercer outlined the national security and data privacy areas to pay attention to in the wake of the GDPR’s enactment. Ali Cooper-Ponte presented an overview of the supplemental legislation EU member states have proposed or enacted as modifications to GDPR provisions, and previewed the EU’s proposed “ePrivacy” amendments to the 2002 EU regulation on privacy and electronic communication. The so-called derogations concern key areas of data-privacy, including the age of child consent (Article 8); the handling of health, biometric, or other sensitive data (Article 9); and restrictions on the transfer of data from the EU to a non-EU country with less stringent privacy laws.

Jennifer Daskal and Peter Swire considered one possible framework for a U.S.–EU agreement on data transfers that would comply with the U.S. Cloud Act and EU law.

Kahn posted NSA General Counsel Glenn Gerstell’s May 23 remarks entitled “Failing to Keep Pace: The Cyber Threat and Its Implications for Our Privacy Laws,” delivered at the Georgetown Cybersecurity Law Institute.

Bruce Schneier discussed security threats laid bare by the recent disclosure of vulnerabilities in encrypted email clients using OpenPGP and S/MIME.

Tamara Cofman Wittes, who co-chaired the National Democratic Institute’s election observer mission in Lebanon, outlined three takeaways from Lebanon’s May 6 parliamentary elections. Cofman Wittes contended that while analysts have highlighted the electoral gains of the Hezbollah-Amal list and the losses of Prime Minister Rafik Hariri’s Future Movement, recent changes to Lebanon’s electoral laws make it unlikely that power will shift from its preelection arrangement.

On Tuesday, the Washington Post reported that the FBI repeatedly overstated the number of encrypted devices linked to criminal investigations that had been inaccessible to law enforcement agents. David Kris critiqued the FBI’s error and called for greater intra-Bureau coordination on requests for access assistance from private parties.

Matthew Waxman offered a preliminary evaluation of British Attorney General Jeremy Wright’s recent remarks on “Cyber and International Law in the 21st Century,” through which Wright set forth the U.K. position on how existing international frameworks apply to cyber matters. While overlooking certain key areas, Waxman contended that Wright’s remarks may presage future collaboration among states on matters of international cyberlaw.

In this week’s Middle East Ticker, J. Dana Stuster critiqued the White House’s post-JCPOA Iran strategy that Secretary of State Mike Pompeo presented in a speech before the Heritage Foundation. Pompeo delineated twelve preconditions for a new agreement and highlighted sanctions as key to winning Iran’s cooperation—an approach Stuster deemed was “long on demands ... [but] short on strategy.”

Kahn posted a recording of the May 16 Senate Foreign Relations Committee hearing on the Corker-Kaine AUMF (S.J. Res. 59), featuring testimony by former State Department Legal Adviser John B. Bellinger III and Georgetown law professor Rita M. Siemion.

Quinta Jurecic posted the draft legislation introduced by Senator Jeff Merkley (D-Ore.) to repeal and replace the 2001 AUMF. Scott R. Anderson presented an overview of the Merkley AUMF, which, in contrast with the proposed Corker-Kaine AUMF, would require Congress affirmatively to approve a president’s proposal to expand an authorization for the use of force.

Jen Patja Howell posted the latest episode of the Rational Security podcast, discussing the Russia investigation, the Administration’s “Plan B” for Iran, and North Korea.

Steve Vladeck discussed the Trump administration’s apparent disregard for protocol outlined in the Federal Vacancies Reform Act of 1989 (FVRA) as it concerns succession at the Department of Veterans Affairs.

In the second of a series of posts, Anderson and Megan Reiss highlighted findings from their survey of U.S. public opinion on the legitimate use of force, discussing public opinion in the context of potential nuclear threats.

Aurel Sari evaluated the Council of Europe’s Parliamentary Assembly resolution 2217 on hybrid warfare (issued March 26), which set forth recommendations for its 47 member states regarding the legal challenges posed by hybrid warfare.

In a two-part series on proxy warfare, Dan Byman examined the circumstances that compel states to engage in proxy war, and the factors that lead proxies to seek foreign support.

Josh Blackman discussed the prospect and implications of conflicting nationwide injunctions connected to the Deferred Action for Childhood Arrivals (DACA) program.

Oriana Skylar Mastro evaluated China’s war termination, suggesting that Beijing’s approaches to wartime diplomacy, escalation, and mediation lend themselves to the prolongation and intensification of conflict.

Anderson and Wittes provided an update on their Freedom of Information Act request for the results of the FBI’s annual internal “climate survey,” flagging a lawsuit they filed on May 18 to compel the Bureau to respond to their FOIA request.

Sarah Grant flagged a May 23 letter by the U.S. Court of Military Commission Review advising the parties that it lacked a quorum to consider contested motions in United States v. Khalid Shaikh Mohammad, et al. (the “9/11 case”). Vladeck argued that the latest complications in the military commission in United States v. al-Nashiri are emblematic of the problems with Guantanamo military commissions generally.

Bobby Chesney and Vladeck posted this week’s National Security Law Podcast, addressing the latest developments in the al-Nashiri military commission proceedings, Doe v. Mattis—set for hearing on June 20—and al-Shimari v. Duggan/CACI, in which a motion to dismiss has been scheduled for oral argument on June 15.

Grayson Clary summarized the Fourth Circuit’s May 9 decision in United States v. Kolsuz, which barred law enforcement from conducting forensic searches of electronic devices at the border without some degree of individualized suspicion.

On May 24, the White House announced it would withdraw from the scheduled June 12 summit between President Trump and North Korean leader Kim Jong Un. Kahn posted the White House letter canceling the meeting.

Stewart Baker posted the latest Cyberlaw Podcast, addressing blockchain and cryptocurrency.

Jurecic posted the federal court ruling in the southern district of New York’s holding that President Trump’s blocking of Twitter users violates the First Amendment.

Kahn posted Khalid Ahmed Qassim’s motion for en banc review of Judge Thomas Hogan’s denial of a petition for habeas relief in Khalid Ahmed Qassim v. Trump.

Paul Rosenzweig flagged a May 21 commencement address delivered by former solicitor general Don Verrilli, in which Verrilli called attention to the present tests to “civic faith” posed by the rhetoric and actions of President Trump and members of Congress.

Patja Howell posted the Lawfare Podcast, featuring interviews with Khaled Elgindy, Natan Sachs, and Sarah Yerkes on “The Jerusalem Embassy Opening and Protests in Gaza.”

And that was the week that was.