The Week That Was

The Week That Was: All of Lawfare in One Post

By Rachel Bercovitz
Saturday, June 2, 2018, 1:35 PM

Matthew Kahn posted the Justice Department Office of Legal Counsel’s May 31 memorandum opinion on the U.S.’s April 2018 airstrikes on Syrian chemical-weapons facilites. Jack Goldsmith contended that the opinion was unsurprising—and indeed “follows straightforwardly from Obama-era legal opinions.”

Maddie McMahon and Jack Goldsmith summarized Justice Department opinions on the president’s pardon power that are of greatest relevance to the Russia investigation, and they discussed the implications of the department’s “extraordinarily broad” interpretation of the president’s authority to pardon.

In the latest Russia-series episode of the Lawfare Podcast, Alina Polyakova spoke with Vladimir Milov, economic adviser to Russian opposition leader Alexei Navalny.

Jeffrey Kahn summarized the May 23 oral argument in Georgia v. Russia (II), an interstate case before the European Court of Human Rights. The case, which concerns alleged Russian violations of international humanitarian and human-rights law during the 2008 Georgian war, is a rare example of a matter brought by one Council of Europe member state against another.

In this week’s Middle East Ticker, J. Dana Stuster discussed the Saudi-led coalition’s advances on the strategic city of Hodeidah and the prospect of a reshuffling of alliances after the Houthis’s expected fall from power; Assad’s anticipated moves into Syria’s southwest, where an internationally supported de-escalation zone currently holds; and the tentative agreement among Libya’s political factions to hold an election by the year’s end.

In an open letter to the FBI, Rep. Adam Schiff (D.-Calif.), ranking member of the House intelligence committee, expressed concern over the “unprecedented and unjustified criticism” of the bureau by President Trump and his congressional allies.

Following recent reports of the Pentagon’s temporary restrictions on lawmakers’ travel to certain countries in the Middle East and South Asia, Ryan Scoville assessed whether the executive has the authority to impose limitations on congressional foreign travel.

Grayson Clary discussed the split circuit court opinions on the government’s authority to search electronic devices at the border, focusing on the Eleventh Circuit’s May 23 ruling in United States v. Touset. The court’s May 23 ruling that electronic device searches do not require any degree of individualized suspicion places it at odds with earlier Fourth and Ninth Circuit decisions.

Carrie Cordero called for greater attention to the national security implications of corporate data collection and aggregation.

Matthew Kahn discussed the espionage prosecution of former intelligence officer Kevin Mallory, whose criminal trial—in an unusual turn of events—began Wednesday in the U.S. District Court for the Eastern District of Virginia.

Mieke Eoyang, Ben Freeman, Ryan Pougiales, and Benjamin Wittes presented findings from their public opinion polls on support for Gina Haspel’s nomination to serve as CIA director. The polls, which ran before and after Haspel’s Senate confirmation hearing, revealed a significant uptick in public awareness of and support for Haspel’s nomination following the public hearing.

Bobby Chesney and Steve Vladeck posted the latest episode of the National Security Law Podcast.

In the latest Water Wars, Timothy Saviola discussed China’s landing of several H-6K bomber aircrafts on the disputed Woody Island, China’s largest military outpost in the South China Sea. The event marked the first time Beijing has landed a long-range bomber on any feature in the South China Sea.

Julian Ku argued that the U.S. should impose economic sanctions against China’s construction activities in the South China Sea, critiquing the current U.S. policy of conducting U.S. freedom-of-navigation operations as unsuccessful in checking China’s expansionist aims.

In this week’s SinoTech, Wenqing Zhao and David Stanton highlighted the latest in the U.S.-China trade negotiations, including both the administration’s agreement to lift the Commerce Department denial order against ZTE, and its announcement on Tuesday that it would proceed with tariffs on Chinese tech imports. The U.S. trade delegation, led by Treasury Secretary Steve Mnuchin, is scheduled to meet with their Chinese counterparts in Beijing next week.

Kahn posted the D.C. District Court’s memorandum opinion dismissing litigation brought by the Moscow-based cybersecurity company Kaspersky Lab.

Jen Patja Howell posted this week’s episode of Rational Security.

Josh Blackman offered a rebuttal of critiques of the Federalist Society and conservative and libertarian lawyers for their alleged public silence on matters concerning President Trump and the Russia investigation.

Wittes reviewed “The Fourth Estate,” Showtime’s new documentary series on journalism at the New York Times during the first year of the Trump administration, finding it a “tremendously important project.”

Joshua Busby and Steve Slick introduced their new polling project on U.S. public opinion of intelligence agencies. The initial findings, a baseline for comparison against successive polls, reveal that a substantial majority of Americans view the intelligence community as effective in preventing terror attacks, while less than half believe it has succeeded in defending privacy and civil liberties. Download the full report.

Jen Patja Howell shared the latest Lawfare Podcast, a recording of the May 29 New America panel on “Counterterrorism Strikes Under Trump: What Has Changed?” Panelists included Joshua Geltzer and Luke Hartig, former NSC Senior Directors for Counterterrorism, and Stephen Tankel, associate professor at American University. Shamila Chaudry, former NSC Director for Pakistan and Afghanistan, served as moderator.

Stewart Baker posted this week’s Cyberlaw Podcast, featuring an interview with Nick Bilton, author of “American Kingpin: The Epic Hunt for the Criminal Mastermind Behind the Silk Road.” The book narrates the libertarian Ross Ulbricht’s road from creator of the Tor site “Silk Road” to convict serving a life sentence. 

Elena Chachko and Yuval Shany discussed the Supreme Court of Israel’s May 24 dismissal of a petition brought by five human rights organizations against the rules of engagement governing the use of force by Israeli security forces at the Gaza border.

May 22 marked the twentieth anniversary of the 1998 Good Friday Agreement. Richard English discussed the historic accord and the lessons to be drawn from it about the intractable nature of conflict resolution.

On Memorial Day, Jeffrey H. Smith reflected on the state of democracy and the rule of law in the Trump era.

And that was the week that was.