The Week That Was

The Week That Was: All of Lawfare in One Post

By Mikhaila Fogel
Saturday, August 18, 2018, 1:38 PM

Benjamin Wittes began the week by analyzing a little-known Office of Legal Counsel opinion from 1973 on whether the president can be subpoenaed. Also in L’Affaire Russe news, yet another U.S. District Court judge upheld the constitutionality of Special Counsel Robert Mueller’s appointment under the Appointments Clause. And late Friday night, the special counsel filed a sentencing memorandum in the case of George Papadopoulos, recommending a sentence of between zero to six months.

On the military-detention front, Jeffrey Kahn asked if a government can refuse if a citizen captured as an enemy combatant abroad asks for a passport, in light of Doe v. Mattis. On Tuesday, the U.S. Court of Appeals for the D.C. Circuit denied a motion for an initial en banc hearing in Qassim v. Trump.

Over the course of the week, Lawfare ran a series of essays on federalism in the Middle East. First, Mila Versteeg introduced readers to growing intellectual ferment toward federalism and decentralization. Next, Wittes imagined a federalist Israel, an idea that Nathan Brown also explored. Adding to the discussion, Chibli Mallat noted that “federalism” has specific connotations in the Middle East, which must be understood before suggesting federal reforms as solutions to the region’s most persistent conflicts. Zaid Al-Ali followed, exploring how many states in the Arab world have debated the value of decentralization and federalism, but none has adopted a constitution that successfully implements those ideas. The series ended on Saturday with Lisa Blaydes cautioning that Iraq’s failed efforts suggest a federalist system based in Baghdad might create new problems.

It was also a week of NDAs and NDAAs, as Omorosa Manigault-Newman created massive PR problems for the president in a series of explosive (if contradictory) interviews about her time in White House. When the White House sought to silence her, claiming that she had signed a non-disclosure agreement, attorney Bradley P. Moss pointed out that, contrary to what President Trump might think, he lacks authority to censor the unclassified communications of former federal employees. Meanwhile, Scott Anderson, Sarah Tate Chambers and Molly E. Reynolds summarized the fiscal 2019 National Defense Authorization Act and its significance for U.S. national security.

It was a busy week for security clearances. On Wednesday, President Trump announced that he had revoked former CIA director John Brennan’s security clearance, citing Brennan’s “frenzied commentary” and “erratic conduct.” That “erratic conduct,” however, seems to amount to simply criticizing the president, which, readers of Lawfare will note, is constitutionally protected free speech. Robert Litt, former general counsel for the director of national intelligence, argued that Brennan would have little difficulty persuading a court that his clearance was revoked in retaliation for exercising his First Amendment rights. On Friday, Wittes spoke with security-clearance expert Moss for the Lawfare Podcast on the president decision and its possible implications:

On this week’s Middle East ticker, J. Dana Schuster shed light on a deadly bombing in Yemen that killed more than 40 schoolchildren. Schuster noted that this latest attack fits a pattern of carelessness in the Saudi Arabian air campaign. Also, Turkey threatened to find new partners after the U.S. imposed sanctions, and Iraq finalized its election recount but is still negotiating a governing coalition. Elsewhere in the Middle East, Daniel Byman probed Hamas’s shifting tactics following the "March of Return" and analyzed the uncertain fate of the civilians Hamas governs in Gaza. And Colin Clarke offered some advice to Saudi Arabia regarding its feud with Qatar in light of the kingdom’s ongoing strategic competition with Iran. Meanwhile, the Lawfare Podcast explored the escalating diplomatic dispute between Canada and Saudi Arabia:

On this week’s episode of the National Security Law Podcast, Bobby Chesney and Steve Vladeck caught listeners up on the latest in national security law news, including in the Doe v. Mattis litigation; they discussed PCLOB nominations and they checked in on the Justice Department’s national security division:

The Rational Security crew, meanwhile, was down one Shane Harris, but they gained a Scott Anderson for their discussion of Paul Manafort’s trial, the tussle between executive and legislative authority in the new NDAA; and the end of Peter Strzok's FBI career:

On Wednesday, former FBI general counsel James Baker launched the first in a series of essays on the implications of artificial intelligence for national security and law enforcement with an examination of how AI affects counterintelligence.

Paul Rosensweig argued that the Transportation Security Administration probably should reduce screening at small airports—or at least study the issue.

Ingrid Wuerth argued that the traditional foundations for the federal common law of foreign relations have eroded but that there is an alternative basis for the federal common law governing foreign official immunity.

Arun Sukumar noted that, as Pakistan’s financial crisis worsens, China’s efforts to expand Islamabad’s dependence on its currency takes a page from a postwar U.S. playbook.

Bobby Chesney gave a quick a breakdown of reports that President Trump has altered the interagency process for vetting offensive cyber operations. While the full details are not available, this appears to be the culmination of long-running efforts to make it easier and quicker to conduct such activities.

Orin Kerr dissected a Seventh Circuit ruling that recording home energy consumption every 15 minutes constitutes a “search” in the post-Carpenter era. Kerr also provided guidance on how to think about a recent privacy case before the U.S. Court of Appeals for the Fifth Circuit that involved opening a file whose hash matched that associated with known child pornography.

Finally, on Saturday morning, former White House counsel Bob Bauer offered a historical perspective on presidential leadership, noting that Richard Nixon resigned after it became clear that he had “broken faith” with core public expectations of presidential leadership.

And that was the week that was.