The Week That Was

The Week That Was: All of Lawfare in One Post

By Tara Hofbauer
Saturday, June 14, 2014, 10:00 AM

Renewed trouble in Iraq dominated this week’s headlines. Jack remarked on the growing threats to U.S. interests and considered how we might try to combat Islamist terror groups. He argued that talk of ending the war is premature but that neither the AUMF nor Article II powers provides the ideal legal basis for engagement with Islamist terror organizations. Congress, he argued, should determine how both to ensure and to check the President’s authority to manage such threats.

However, Jack later pointed out that the President could rely on the 2002 Iraq AUMF as a basis for using force there, and even in Syria, which is not to say that he necessarily thought either was a good idea. Wells suggested that while Jack’s understanding of the 2002 AUMF is “plausible,” statutory context limits such a reading.

On Friday, President Obama issued a statement on the situation in Iraq. He announced, “We will not be sending U.S. troops back into combat in Iraq.” Ben gave us the video, while Ritika linked to the transcript.

This week’s Foreign Policy Essay came to us from former White House official Quintan Wiktorowicz. He argued that it is time the budget designated specific spending for countering violent extremism.

Book Review Editor Kenneth Anderson then reviewed Kimberly N. Trapp’s new essay on armed attacks by non-state actors. He praised her for accommodating the academic thinking that underpins both the UN charter and the American response to assaults by non-state actors. He also examined an essay on drone warfare, which argued that because of the major barriers to the diffusion of technological innovation, it is actually unlikely that drone use will lead to redistributed military power.

More on the international front: Matthew Waxman looked at economic sanctions and noted that unraveling them is just as important as establishing them in the first place.

Sean Mirski analyzed the most recent developments in the litigation between China and the Philippines over land in the South China Sea.

Meanwhile, Paul considered the ongoing legal dispute between China and the U.S. over cybercrimes committed by members of the Chinese military. He also analyzed a CSIS/McAfee report, which estimated the costs of cybercrime, and remarked on the problems associated with estimating such losses and combatting crimes that are “state tolerated,” if not supported.

Also on cybersecurity: Jack flagged Paul’s “Great Courses” lectures, which touches on important issues affecting cyberspace.

One year since the disclosure of classified NSA documents, a certain government contractor still remains relevant. The Cato Institute is holding an online exchange on the files released by Edward Snowden and featured essays from Julian Sanchez, Ben, Carrie Cordero, and Marcy Wheeler. Ben first gave us the introductions to contributions from Julian and himself, and then later provided the opening to Carrie’s when it became available.

This week’s Steptoe Cyberlaw Podcast also examined Snowden disclosures. This week's guest was Congressman Mike Pompeo (R-KS), a member of the House Permanent Select Committee on Intelligence. The gang discussed the USA Freedom Act, along with other NSA news.

Meanwhile, the Lawfare Podcast featured a debate, held last week at Brookings, on NSA and surveillance reform. It included arguments made by Jameel Jaffer, Julian Sanchez, John “Chris” Inglis, and Carrie Cordero. Ben moderated.

Ben later went on to ponder why the NSA has been so tolerant of Glenn Greenwald and his activities if the agency really is the all-knowing Leviathan the journalist has described it as. Perhaps, it adheres to a system that requires “individualized suspicion and a FISA warrant” after all.

Wells shared a recently published paper by Ben and himself, which considers privacy and Big Data. They argue for a narrower understanding of the amorphous notion of privacy.

Meanwhile, in this week’s Bits and Bytes, Paul flagged Jason Healey’s “hopelessly optimistic” views on Internet privacy. Paul also noted the FCC’s new regulatory model and a recent Eleventh Circuit Court decision.

In legal news: Jane brought us the D.C. Circuit Court opinion in Allaithi v. Rumsfeld, which found against six former Guantanamo Bay prisoners who alleged prolonged detention and mistreatment.

Steve Vladeck highlighted two cert. petitions under consideration by the Supreme Court. Brought by private military contractors, they ask the Court to revisit Circuit opinions that would make contractors civilly liable for employees’ tortious actions.

Ingrid Wuerth examined the recently decided Supreme Court case Bond v. United States and explored the ruling’s impact on foreign affairs exceptionalism, Executive Branch authority, and foreign relations law.

Jack later noted that he and Curtis Bradley had written a summer supplement to the fifth edition of their Foreign Relations Law casebook in order to reflect the opinion in Bond and legal matters related to the Sgt. Bowe Bergdahl exchange.

On Wednesday, the House Armed Services Committee heard testimony from Secretary of Defense Chuck Hagel and DOD General Counsel Stephen Preston regarding the Bergdahl deal. Jack considered the legal arguments Preston made about congressional notice and end-of-conflict detention authority;   I linked to the prepared statements and live broadcast of that hearing and the one before the House Judiciary Committee on oversight of the FBI.

And that was the week that was.