The Week That Was

The Week that Was: All of Lawfare in One Post

By Yishai Schwartz
Saturday, May 10, 2014, 9:55 AM

As the week began, Ben noted that the last few weeks have been fairly kind to NSA. Ben hypothesized that the story may finally be blowing over.

Well, maybe not quite over. Jack critiqued a new DNI directive banning members of the intelligence community from citing news reports based on leaks in their speeches, opinion articles, books, term papers or other unofficial writings. Jack argues that this directive, like its predecessor restricting conversations with journalists, is overbroad to the point of being practically unenforceable. And Ritika posted the latest declassified document trove from ODNI. These documents are from early on, relating to intelligence-gathering activities authorized by President George W. Bush shortly after 9/11.

Ben also posted video from a recent “Munk debate” on state surveillance. The debate features Alan Dershowitz, Michael Hayden, Glenn Greenwald and Alexis Ohanian. And later, he flagged an interesting article in Der Spiegel on US-German relations. The article (and Ben) argued that NSA-induced friction is simply too small an issue to create real problems for an alliance that is based on long-standing global interests, including the present need to confront Russian aggression in Eastern Europe.

Speaking of Russia, in this week’s Foreign Policy Essay, American University Professor Jeff Colgan inquires into the legality, feasibility and likely success of imposing a regime of economic sanctions against Russia’s energy sector. Respectively, his answers were: probably, it depends, and maybe.

John noted a New York Times article reporting on a French Security Council resolution draft seeking to refer Syria to the ICC. The French draft is worded carefully to avoid potentially implicating Israel or American service people, and John uses it as a case-study to comment on how the US can make productive use of the ICC without submitting to its jurisdiction.

Meanwhile, Ritika reflected on the most recent updates in the Thai political crisis, and announcing that she’ll be leaving for graduate school, she posted a link to a job announcement seeking her replacement.

And in my last week as the lawfare intern, I attended oral arguments in Ralls Corporation v. Committee on Foreign Investment at the DC Circuit and posted a recap.

This week’s Lawfare podcast featured a conversation with Commander Michael Adams, deputy legal adviser to the Chairman of the Joint Chiefs of Staff, at last week’s 27th annual MILOPS conference at U.S. Pacific Command. Adams discussed life after the AUMF, the role of military lawyers, the Executive’s non-war national security powers, and his recent paper “Jus Extra Bellum.”

Speaking of military action beyond the AUMF, Bobby noted some evidence that DOD is failing to live up to its reporting requirements for JSOC activities outside Afghanistan, and the House Armed Service Committee is preparing to respond with a slash to funding. And later in the week, he flagged a Politico report that the US may be headed for a slightly expanded, but still limited, military involvement in Nigeria.

Onto Cyber: Herb Lin flagged the release of a new report from the Computer Science and Telecommunications Board (CSTB) of the National Academies. The report, titled “At the Nexus of Cybersecurity and Public Policy: Some Basic Concepts and Issues,”is an attempt to distill the cybersecurity wisdom of a body of experts into a publicly available form.

In the latest episode of the Steptoe Cyberlaw Podcast, the regular gang was joined by security researcher Brian Krebs (of Krebs on Security). They discussed Russian cyberfraud, the recently released Big Data report, and news connected to Microsoft, Target and NSA.

Paul critiqued the approach that the House Appropriations Committee is taking to the planned transfer of IANA to ICANN. He argues that the Committee is creating bad will and not accomplishing anything productive. And in a follow-up to the FTC’s victory in Wyndham, where a District Court ruled that inadequate cybersecurity could be and “unfair business practice,” Paul flagged a recent ruling by an administrative law judge demanding that FTC release its standards for what constitutes “reasonable security measures” as part of its long-running dispute with LabMD.

Liability rules may, of course, harm innovation. So Carrie Cordero’s endorsement of UC Davis’s Anupam Chander recent article “How Law Made Silicon Valley” is worth a read. In the article, Chander argues that American technological innovation is the direct result of some deliberate legal decisions made by American legislators, regulators and judges.

And on a vaguely-related technology front, Ben posted some thoughts from Brookings colleague and coauthor John Villasenor on his recently released paper on driverless cars and liability rules for car accidents.

In Guantanamo news, the Al Nashiri case has been drawing a lot of Lawfare attention. First, we featured an extended of back and forth between Peter Margulies (Part I and Part II) and Steve on the merits of Al Nashiri’s latest habeas petition. And then Wells posted a trove of newly declassified pleadings and documents related to the case, including briefs from amici supporting Al Nashiri’s current habeas position.

Mike German of the Brennan Center responded to Philip Heymann’s analysis of the FBI Inspector General report on the Boston Marathon bombing. German found Heymann’s suggestion that the Tsarnaevs’ “community” be subjected to increased suspicion particularly troubling.

Finally,  Ben commented on a Times editorial discussion of attempts to hold up David Barron’s appellate court nomination in order to obtain legal memos on targeted killings. In particular, Ben objected to the headline which seemed to blame Barron (who was, after all, only a lawyer) for the political judgments of President Obama’s policy team.

And was the week that was.