The Week That Was

The Week That Was: All of Lawfare in One Post

By Lev Sugarman
Saturday, April 6, 2019, 7:04 AM

This week has seen a flurry of shadow boxing surrounding the impending release of Special Counsel Robert Mueller’s report. Stephen Bates analyzed the history of the Watergate Road Map’s transmission to Congress in 1974, offering lessons for current congressional attempts to obtain Mueller’s completed report. Mieke Eoyang, Ben Freeman, Ryan Pougiales and Benjamin Wittes shared data from their public polling series on public confidence in Mueller’s investigation following Barr’s letter outlining the report’s principal conclusions.

Lev Sugarman shared a letter from House Democrats to Attorney General Bill Barr seeking release of Mueller’s full report. Mikhaila Fogel shared a statement released by the Department of Justice elaborating on the report’s redaction process and Barr’s earlier statement on its expected public release. Fogel also shared a filing from the Reporters Committee for Freedom of the Press seeking public release of the grand jury material underlying the report’s conclusions. And Quinta Jurecic shared the D.C. Circuit’s decision in McKeever v. Barr, in which a divided panel ruled that courts do not carry the inherent authority to release 6(e) grand jury information.

In U.K. news, Amanda Sloat offered up-to-date coverage on Brexit, including Parliament’s third rejection of Prime Minister Theresa May’s Brexit plan and the resulting chaos in Westminster and No. 10.

Robin Simcox argued that the U.K. should revoke the citizenship of those who fled to join the Islamic State.

And Jen Patja Howell shared an episode of the Lawfare Podcast in which Benjamin Wittes spoke to the United Kingdom’s Ambassador the U.S. Sir Kim Darroch on the U.S.-U.K special relationship:

This week has been no less busy for congressional oversight. Margaret Taylor wrote on this Congress’s first subpoena authorizations, seeking information on security clearances, the census, and the Mueller report.

Carrie Cordero introduced a new report from the Center for a New American Security on congressional intelligence oversight.

Mikhaila Fogel posted a memo released by the House Oversight Committee on its interview with the White House security clearance whistleblower and a letter on the matter from Chairman Elijah Cummings (D-Md.) to the White House Counsel.

Sugarman shared the transcript from the House Judiciary Committee’s interview with former head of FBI Counterintelligence Bill Priestap.

And Quinta Jurecic shared a lawsuit filed by the House of Representatives against the Trump administration’s use of a national emergency declaration to build a border wall.

Elsewhere in the world, Scott Moore and Michelle Melton discussed the Chinese government’s increasingly frequent labeling of climate change as a national security issue.

Laya Maheshwari assessed India’s jus ad bellum justifications for its February “non-military preemptive strike” in Pakistan.

Emma DiNapoli unpacked a German court decision requiring the government to ensure U.S. drone strikes conducted from Germany do not violate international law.

And Jen Patja Howell shared a new episode of Rational Security in which Tamara Cofman Wittes, Shane Harris, Susan Hennessey and Benjamin Wittes discuss malware at Mar-a-Lago, U.S.-Saudi relations and more:

Moving to terrorism prosecutions, Charles Kurzman highlighted an inconsistency in Justice Department policy relating to the naming of American right-wing extremist defendants versus Muslim American defendants.

Jacques Singer-Enemy recapped recent proceedings in the 9/11 military commission, while Patrick McDonnell summarized proceedings in the U.S. Court of Military Commission Review in al Bahlul.

And Matthew Kahn posted a Department of Justice brief opposing Guantanamo detainee al-Alwi’s cert petition before the Supreme Court.

In cyber and technology matters, Sugarman shared a criminal complaint charging a woman found with malware at Mar-a-Lago with trespassing and false statements, and a Department of Justice Inspector General report on the FBI’s system for notifying victims of cyber attacks.

Stewart Baker shared an episode of the Cyberlaw Podcast on the North Korean embassy break-in, an FTC investigation into service provider privacy practices and more:

In matters 5G, Herb Lin discussed the technical side of the risks associated with Huawei 5G. Rachel Brown and Preston Lim wrote on U.S.-China trade negotiations and Chinese 5G deployment in Europe. And Sugarman shared a letter from former military combatant commanders and intelligence directors warning of intelligence, defense and governance risks of Chinese-developed 5G infrastructure.

In other law enforcement issues, Sugarman shared a Justice Department Inspector General report on the DEA’s use of administrative subpoenas to collect data in bulk for drug investigations. Robert Chesney and Steve Vladeck spoke on that issue and more in a new episode of the National Security Law Podcast:

Sugarman shared more documents relevant for Lawfare readers, including two motions filed by the Trump administration seeking dismissal of lawsuits challenging Trump’s border wall emergency declaration, Chelsea Manning’s motion for release pending appeal in her civil contempt case, and a lawsuit filed by former military and intelligence officials challenging the government pre-publication review process on free speech and due process grounds.

Jen Patja Howell shared an episode of the Lawfare Podcast featuring a conversation between David Priess and journalists Mary Louise Kelly and Shane Harris on reporting on intelligence issues:

Matthew Kahn posted a criminal complaint charging a man, who made “statements consistent with white supremacist ideology” and referenced the Christchurch attacks, with making false statements about his possession of firearms.

And that was the week that was.