The Week That Was

The Week That Was: All of Lawfare in One Post

By Anushka Limaye
Saturday, September 29, 2018, 10:01 AM

After a confusing week in which rumors flew that Deputy Attorney General Rod Rosenstein had resigned or would be fired, Rosenstein has kept his job—for now. On Thursday, Susan Hennessey and Benjamin Wittes assessed the importance of Rosenstein remaining in his post, and the dangerous hole that his departure would create. The gang discussed "Should Rod Stay, or Should He Go?" on the latest edition of Rational Security.

The deputy attorney general's job security became shaky in part because of a New York Times report that he had discussed invoking the 25th Amendment to remove President Trump from office in the wake of James Comey's firing. Matthew Kahn analyzed why using the amendment to remove a president is not a viable solution in all but the rarest and most extreme of cases.

Rosenstein's possible departure was also a topic on this week's episode of the National Security Law Podcast. Bobby Chesney and Steve Vladeck discussed the line of succession for Rosenstein in the event of his departure, the latest on the Supreme Court docket, the National Cyber Strategies, military commissions and updates from the Department of Justice National Security Division.

Quinta Jurecic flagged the Justice Department’s newly updated U.S. Attorneys’ Manual—now the "Justice Manual"—which now includes a section on the “Disclosure of Foreign Influence Operations."

On Sept. 21, the U.S. Court of Appeals for the D.C. Circuit heard McKeever v Sessions, a case concerning the court’s power to release material protected under grand jury secrecy—which could have significant implications for whether Special Counsel Robert Mueller will be able to release a reporton on his investigation. Jeremy Gordon provided a comprehensive summary on Monday of the oral arguments in the case. In the face of silence from Mueller himself, Victoria Clark chronicled the thoughts and works of Robert Muellers elsewhere.

It's been 224 years since the Whiskey Rebellion, and Matthew Waxman reflected on what we can learn about law and military power in the early republic from the rebellion—the only time that a sitting president has ever commanded troops in the field. Meanwhile, Brenna Gautam and Julia Solomon-Strauss provided us with a detailed breakdown of last week’s military commissions hearings in United States v. Khalid Sheikh Mohammed et al.

The Pentagon's new 2018 Cyber Strategy document includes an initiative called “Defense Forward”—but what does that mean? Chesney helped us break it down. Merle Maigre argued that cyber defense should see a substantial increase in priority in international foreign and security policy debates.

Earlier this September, the Five Eyes intelligence alliance met in Australia and issued a Statement of Principles on Access to Evidence and Encryption. Susan Landau argued that this statement is not compatible with the technical realities of our world.

Jen Patja Howell posted another episode of the Lawfare Podcast, a conversation with Jim Baker on AI and its uses in counterintelligence.

And on the Steptoe Cyberlaw Podcast, Stewart Baker talked with Peter W. Singer, co-author with Emerson T. Brooking of "LikeWar: The Weaponization of Social Media."

In the latest Aegis Series Paper from the Hoover Institution, Andrew Keane Woods pushed against the idea that technology firms have effectively become sovereign actors.

In world news, Sharan Grewal assessed Tunisia’s new push for equal inheritance laws and the likelihood that they will get past Tunisia’s Islamist Ennahdha party. J. Dana Stuster posted this week’s edition of the Middle East Ticker, discussing the Iran nuclear deal at the United Nations and rising tensions between Israel and Russia over a downed Russian military plane. Chimène Keitner analyzed the Trump administration’s attack on the International Criminal Court and its framework for approaching international institutions—a self-proclaimed but misconceived “ideology of patriotism."

Tamar Hostovsky Brandes and Idit Shafran Gittleman analyzed the Israeli Supreme Court’s decision in Tziam v. the Prime Minister, in which the high court ruled that the government could not deny entry to East Jerusalem to a group of women, related to Hamas members, who needed lifesaving medical care. Gregory D. Johnsen argued that the civil war in Yemen is actually three intersecting wars—the civil war itself, the struggle against terrorism and the regional struggle encompassing Saudi Arabia, the United Arab Emirates, and Iran.

In this week's Water Wars, Nathan Swire wrote on the Philippines’ and China’s new plan to discuss joint exploration for natural resources in the South China Sea, as well as Japan’s first acknowledged deployment of a submarine to the region. On the Lawfare Podcast, Scott Anderson talked with Elsa Kania, an adjunct fellow with the Center for a New American Security, on her newly co-authored report on China’s efforts to achieve “Quantum Hegemony.”

Finally, Matthew Kahn announced a call for nominations for the 2018 Mike Lewis Prize for National Security Law Scholarship, which provides a monetary prize for the author of an outstanding national security law article. Nominations for the prize must be submitted by Sept. 30.

And that was the week that was.