The Week That Was

The Week That Was: All of Lawfare in One Post

By Tara Hofbauer
Saturday, June 7, 2014, 9:21 AM

The release of Sgt. Bowe Bergdahl dominated this week's news---both nationally and on Lawfare. In exchange for Bergdahl’s liberation, the United States freed five Taliban leaders detained at Guantanamo Bay. Wells gave us the initial report on the deal.  John Bellinger examined the backgrounds and activities of the Taliban leaders exchanged for him and concluded that the administration reached a “defensible” agreement, given that authority to hold Taliban detainees may expire when American combat operations in Afghanistan end. Ultimately, he found that the deal highlights the logistical problems associated with attempts to close Guantanamo.

The exchanged raised other controversies as well. Ben linked to an article written by an American soldier, who served with Bergdahl and asserted that the POW “was a deserter”---a claim quickly echoed by many others. Meanwhile, Jack observed that the President disregarded certain laws, particularly Section 1035 of the 2014 NDAA, when he failed to inform relevant congressional committees at least 30 days in advance of the transfer. Jack also noted other statutes implicated by the failure to notify: the FY 2014 Consolidated Appropriations Act and the Anti-Deficiency Act. Jack also noted with amusement former Vice President Cheney's outrage that President Obama did not observe the terms of an act of Congress.

Throughout the week, President Obama responded to such criticisms of the deal. In defending the legality of the decision, the administration originally seemed to rely on Article II powers. However, it later claimed “an implied exception” to Section 1035 during emergency circumstances, surprising Jack, who remained unconvinced by this interpretation. The President also denounced lawmakers for treating Bergdahl like “a political football.” However, John noted that it was the President who initially politicized the transfer by announcing it himself in the Rose Garden, instead of allowing Secretary Chuck Hagel and Joint Chiefs Chairman Martin Dempsey to break the news.

Ben examined all of these concerns in his analysis of the exchange, and determined that it is too soon to tell if the administration made the right call. He remains “anxious,” though, about the decision to negotiate with terrorists.

In unrelated Guantanamo news, some detainees had a better week than others. A Periodic Review Board approved detainee Ghaleb Nassar Al Bihani for transfer to a third country, according to release which Ben shared. On the other hand, Wells noted that the Convening Authority authorized war crimes charges against Abd Al Hadi Al-Iraqi, so the case may now continue to arraignment. And Jane Chong gave us the government’s response to former detainee Abdul Rahim Abdul Razak al Janko’s petition for an en banc rehearing. Al Janko seeks damages from the U.S. for detaining him in Afghanistan and Guantanamo.

Turning to matters that don't involve Guantanamo detainees or Bergdahl, NSA matters continue to percolate. An Idaho District Court ruled for the government in dismissing a Fourth Amendment challenge to the NSA’s telephone metadata program. Wells pointed out that the opinion contains “a hint of reluctance,” even as it applied Smith v. Maryland.

The Senate Select Committee on Intelligence likewise considered NSA metadata collection in a hearing on Thursday regarding the House’s recently passed USA Freedom Act. Wells provided the witness list and testimony, while Ben shared the full video of the hearing:

Germany’s top prosecutor announced his intention to look into the tapping of Chancellor Angela Merkel’s cell phone. Ashley Deeks considered the upcoming inquest and the pressure it puts on reform of U.S. policy.

Ben announced the latest installment of the Lawfare Research Paper Series (otherwise known as the War on Law Reviews), which focuses on the appointments to the FISA Court and potential reform of the designation system. Written by Russell Wheeler of the Governance Studies program at the Brookings Institution, “The Changing Composition of the Foreign Intelligence Surveillance Court and What If Anything to Do about It” looks at the demographics and professional backgrounds of the judges who have sat on the FISC. Ben shared a link to the article.

Thursday marked the first anniversary of the first news article based on disclosures by Edward Snowden. In recognition of the festivities, Ben moderated a debate at Brookings on the future of U.S. surveillance authority. Ritika linked to the event’s webcast.

Meanwhile, Jack responded to criticism from Rahul Sagar of his analysis of Michael Kinsley’s review of Glenn Greenwald’s No Place to Hide. He concluded that journalists serve as a vital check on government, even if the system is “messy” and imperfect. Meanwhile, Ben linked to two other reviews of Greenwald’s book; one in Prospect by George Packer, the other written by David Aaronovich in New Statesman.

This week’s Steptoe Cyberlaw Podcast also examined issues related to Snowden. Stewart Baker brought us the conversation, which featured guest Ron Deibert, who is the director the Canada Centre for Global Security Studies and the Citizen Lab at the Munk School at the University of Toronto.

At least a few things happened this week that did not involve either Snowden or Bergdahl. In cybersecurity news: Paul reported that the DOJ indicted members of a Russian gang, which was allegedly engaged in acts of cybercrime. These charges follow shortly after ones brought against Chinese government officials for economic espionage.

This week’s Foreign Policy Essay, written by C. Christine Fair, Karl Kaltenthaler, and William J. Miller, focused on Pakistani perceptions of American drone strikes. The authors argued that most Pakistanis have little knowledge of the U.S. drone program and, thus, it does not significantly contribute to anti-Americanism.

In a guest post shared by Bobby, Professor Mike Lewis of Ohio Northern University’s Pettit College of Law also considered U.S. drone policy in Pakistan. He analyzed a set of data from  the Bureau of Investigative Journalism (TBIJ), which details 383 strikes carried out between June 2004 and the end of last year.

Ashley considered American attempts to train foreign militaries to combat threats within their own borders so that we do not have to address such problems ourselves. She noted the many challenges associated with such a strategy.

Ben brought us this week’s Lawfare Podcast, which featured Robert Kagan, a senior fellow in the Project on International Order and Strategy at the Brookings Institution, in addition to Leon Wieseltier of The New Republic and Fred Hiatt of The Washington Post. They spoke about the responsibilities of the U.S. as a superpower and Americans’ sense of world weariness.

The Supreme Court reached a decision in Bond v. United States. Wells shared the opinion, which found that the federal statute banning the use and possession of chemical weapons does not apply to the local criminal acts of Carol Anne Bond. Jack linked to commentary on the ruling.

And Carrie Cordero noted the release of Vodafone's transparency report.

Finally, on the lighter side, Paul gave us a highly entertaining video, in which John Oliver explains net neutrality, and he also shared an article by Michael Stern considering how President George Washington would have replied to a House of Representatives request for documents from his Office of Legal Counsel---if he had had one. And Ben noted that the CIA has joined Twitter.

And that was the week that was.