The Week That Was

The Week That Was: All of Lawfare In One Post

By Nick Basciano
Saturday, November 16, 2013, 8:35 AM

Life, Liberty, and the pursuit of Privacy---worldwide privacy, that is: Last week Just Security’s David Cole argued for the existence of a global right to privacy, a claim to which Orin Kerr disagreed on this site. This week, Ben wondered what a global right to privacy would look like and how it might conflict with the long-standing reality of international espionage. Cole lamented Ben’s “failure of imagination” on the issue, a critique to which Ben responded. Cole’s subsequent reply was noted, but Ben decided to withhold further comment. To clarify how international law currently understands extraterritorial privacy, Ashley looked at the International Covenant on Civil and Political Rights--and published a response to her piece from a student named Luca Urech. Ingrid asked if the US might take into account the “interests of foreign stakeholders” as a means to begin engaging the issue of universal privacy in a tangible way. Georgetown Law's Carrie Cordero described what she sees at the two most prominent arguments against mass surveillance---the “power of metadata” and “privy protection to foreigners”---and gave us the reasons why she finds both rather unconvincing.

The FISC’s secretive and ex parte decisions continue to foment controversy. Ben discussed the government’s interesting response to the Center for National Security Studies’ attempt to submit an amicus brief regarding bulk metadata collection.

The Senate Judiciary Committee's Subcommittee on Privacy, Technology, and the Law held a hearing on the Surveillance Transparency Act of 2013 this week. Paul testified, and Ben linked to the testimony of the other witnesses: ODNI GC Bob Litt, Richard Salgado of Google, and Kevin Bankston of the Center for Democracy and Technology.

In a discussion over the rule of lenity as applied to surveillance, Orin gave a three-point response to Steve’s criticism of the rule.

Ben grouchily pointed out Rep. James Sensenbrenner's taking his surveillance opinions on the road---to Europe.

Somewhat breaking news came out Friday afternoon: Raffaela flagged a Washington Post story reporting that the Department of Justice is reviewing its cases to determine whether, under its new interpretation of FISA notice requirements, the government must notify criminal defendants previously unaware of the introduction of evidence derived from FISA surveillance programs.

This week in Mehanna v. United States, a much-talked about terrorism trial that deals with substantial First Amendment issues, the First Circuit affirmed Tarek Mehanna's conviction. Matt Danzer gave a comprehensive summary of the opinion. Ben suggested the opinion declined to decide broader questions of protected speech in cases of terrorism. Peter Margulies thought the case did address the First Amendment issues in substantive manner and gave an explanation of why.

Raffaela offered a summary of the appellant and appellee briefs in Abdullah v. Obama, a detainee habeas-related appeal before the D.C. Circuit.

Continuing coverage of Bond v. United States, John posted the comments of Edwin Williamson, former Department of State Legal Adviser in the George H.W. Bush Administration, who responded to John’s amicus brief in the case.

Last month we noted that Lavabit, Edward Snowden's now-shuttered email provider, filed an appeal in the Fourth Circuit over the government's order to produce encryption keyes. The government has now responded in the case, and Paul gave us a summary.

As the US drawdown in Afghanistan grinds forward, significant concerns remain regarding the fate of more than 3,000 detainees at Parwan Detention Facility in Afghanistan. Bobby discussed the implications of a recent decision by the Afghan Government to release hundreds of Afghan-nationals from the facility. John describes the statuses of the detainees at Parwan and gives us some context by comparing the problem to that of Guantanamo.

Ben linked to two videos. The first was DHS-nominee Jeh Johnson’s confirmation hearing before the Senate Homeland Security Committee. The second, “Leakers or Whistleblowers,” was a debate between journalist Barton Gellman and former NSA and CIA head Michael Hayden.

Jack highlighted his other blog, On Labor, a blog of labor law and policy issues co-founded with HLS's august labor law scholar Ben Sachs.

Ben enjoined our iTunes listeners to rate and review the Lawfare Podcast.

Last (and most certainly least): here is a knucklehead who thinks he is clever.

And that was the week that was.