The Week That Was

The Week That Was: All of Lawfare in One Post

By William Ford
Saturday, September 1, 2018, 8:46 AM

The National Security Division of the Justice Department charged W. Samuel Patten, a Washington political operative and former associate of Paul Manafort, with failing to register as an agent of a foreign principal. From 2014 to 2018, Patten allegedly acted on behalf of Opposition Bloc, the Russian-linked Ukrainian political party for which Paul Manafort worked in 2014. Mikhaila Fogel posted Patten’s criminal information, statement of offense, and plea deal.

Despite months of talks, the special counsel investigation and President Trump’s attorneys continue to negotiate over whether Trump will sit for an interview with Special Counsel Robert Mueller III’s team. In advance of a possible Mueller-Trump interview, Benjamin Wittes sat down with Solomon Wisenberg—one of only three people ever to have interviewed a sitting president as part of a grand jury investigation. The pair discussed Wisenberg’s experience interviewing President Clinton, how it can inform thinking on the potential interview with Trump, and more on the Lawfare Podcast

Keith Whittington argued that Congress must consider whether to weigh impeachable offenses cumulatively or in isolation. In the event of an impeachment trial, Whittington urged senators to treat offenses in their totality when they cast their vote.

The Privacy and Civil Liberties Oversight Board (PCLOB) has operated without a chair since 2016 and without a quorum since early 2017, rendering the body inoperative. Before the board’s vacancies become a major problem in the annual review of the Privacy Shield framework that governs data transfers between the U.S. and the EU, Cameron Kerry urged the Senate to confirm the pending nominees to the PCLOB.

Jake Laperruque suggested that once the PCLOB becomes operational again, the board’s top priorities should be examining the call detail record program set to expire next year, the impact of counterterrorism surveillance, and continued transparency problems with Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Earlier this week, the Second Circuit Court of Appeals heard oral argument in United States v. Hasbajrami, a challenge to the constitutionality of the government’s search and seizure of the communications of U.S. citizens without a warrant under FISA Section 702. Matthew Kahn shared the full audio of oral argument.

On a bonus episode of the Cyberlaw Podcast, Stewart Baker and Bruce Schneier continued the discussion about privacy and surveillance in a 2015 interview examining Big Data tools, Edward Snowden, the role of “mass surveillance” in the fight against terrorism, and whether damaging cyberattacks occur infrequently and remain hard to attribute:

Dakota Rudesill explained how President Trump’s classified order reforming the interagency review and decision-making process for cyber operations remains consistent with other trends in his national security governance, namely the president’s tendency to give agencies greater latitude and minimize his personal accountability.

On Tuesday’s episode of the Lawfare Podcast, Jack Goldsmith, David Kris, and Benjamin Wittes debated how former senior intelligence officials can most effectively criticize facets of the president’s national security governance—namely his attacks on the Mueller investigation and the intelligence community broadly—if they decide to do so:

Wittes and Scott Anderson submitted what they termed a “meta-FOIA” request to determine how the U.S. Postal Service released the SF-86 of a congressional candidate and former CIA officer.

In advance of the Senate Judiciary Committee’s coming hearings on the nomination of Judge Brett Kavanaugh to serve on the U.S. Supreme Court, Scott Anderson, Hayley Evans, and Hilary Hurd created a reader’s guide to Kavanaugh’s positions on questions related to national security and foreign relations. The trio’s post adds to Lawfare’s growing body of work on the subject, which includes commentary from Robert Loeb, Peter Margulies, Benjamin Wittes, Steve Vladeck, and Orin Kerr.

In this week’s Middle East Ticker, J. Dana Stuster examined Iran’s lawsuit against the U.S. at the International Court of Justice; Iranian President Hassan Rouhani’s efforts to work with European partners to save the Iran nuclear deal; the diplomatic feud between the U.S. and Turkey over Ankara’s detention of American pastor Andrew Brunson; and Saudi Arabia’s foreign policy and domestic reforms.

Amichai Cohen and Yuval Shany shared their initial observations on the Israeli Military Advocate General’s decision to terminate investigations into deadly and controversial conduct by the Israeli Defense Forces during fighting in Gaza in 2014.

Robert Chesney addressed the uncertain fate of the more than 600 captured ISIS fighters held by the Syrian Democratic Forces. He encouraged the Trump administration to prosecute in federal civilian court any fighters transferred into U.S. custody.

On this week’s National Security Law Podcast, Chesney and Steve Vladeck dissected the issues raised by the Obama administration’s use of lethal force against Anwar al-Awlaki—an American citizen and a key member of al-Qaeda in the Arabian Peninsula:

Scott Anderson and Megan Reiss examined public opinion on President Trump and North Korea in the third part of their ongoing series on law and public intuition on the use of force. 

Following the president’s decision to cancel upcoming nuclear disarmament talks with North Korea, Jen Patja Howell shared the latest episode of Rational Security: The ‘Kim Jong Umm Just Kidding’ Edition:

Oriana Skylar Mastro argued that a stronger U.S. defense relationship with India is unlikely to deter China from pursuing an aggressive foreign policy.

Matthew Maxman reviewed Craig Forcese’s new book, “Destroying the Caroline: The Frontier Raid That Reshaped the Right to War.”

Stephanie Leutert and Caitlyn Yates contended that a “safe third country” agreement between the U.S. and Mexico will not solve the migration challenges facing the U.S.

Mary McCord outlined five reasons to worry about 3D-printed plastic guns. And Charles Duan observed that copyright law could permanently stop the production of 3D-printed guns, though he questioned whether it should be used to do so. 

And that was the week that was.