The Week That Was

The Week that Was: All of Lawfare in One Post

By Tara Hofbauer
Saturday, June 28, 2014, 9:55 AM

The week began with the Department of Justice’s release, under a Second Circuit court ruling, of a redacted version of an Office of Legal Counsel (OLC) memo that outlined the government’s justification for the targeted killing of U.S. citizens. Jane brought us the initial coverage, and Ben followed with an initial summary.

Ben then considered the use of the word “imminence” in the memo and the administration’s legal rhetoric generally. He speculated that the word originated from internal executive branch law, so it could mean anything the president decides it means. Wells found support for Ben’s theory in a 2010 Washington Post article by Dana Priest. Ben dug deeper and proposed that the term “imminent threat” actually comes from an effort to avoid violating the assassination ban in Executive Order 12333.

John Bellinger shared the recommendations of the Stimson Center Task Force on U.S. Drone Policy, which urges increased transparency, better oversight and accountability, and clearer international standards. The group also recommends that responsibility for executing drone strikes be transferred from the CIA to the U.S. military. Kenneth Anderson brought us a timely review of Ian Henderson’s essay on targeted killings by civilian intelligence entities.

Ashley Deeks noted that Kenya, Israel, and Syria, all of which have conducted air strikes against other countries in the past week, have not sent Article 51 letters to the U.N. Security Council.

Iraq was still pretty big this week. Yesterday, President Obama informed Congress that action taken there is being conducted “pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.” Wells shared the letter. This week’s Lawfare Podcast, provided by Ritika, featured a timely discussion of Iraq’s deterioration. Brookings Institution senior fellows Suzanne Maloney, Michael O’Hanlon, and Ken Pollack participated in the conversation. Tamara Cofman Wittes moderated.

Jack shared excerpts from a Daily Beast article on deployed American troops’ immunity from prosecution in Iraq.

The Foreign Policy Essay this week considered the role of the masses in countries ruled by dictators. Authors Andrea Kendall-Taylor, a member of the U.S. intelligence community, and Erica Frantz, an assistant professor at Bridgewater State University, argue that, now more than ever, popular protests pose a real threat to the authority of tyrants. The empowerment of people may, therefore, enable “opportunities for democratization in places they have not previously existed.”

Edwin Williamson joined in on last week’s Abu Khattala debate. Although Ben, Jack, John, Steve Vladeck, and Wells all found that the Libyan terrorist has to face trial in civil court, Edwin argued that “as a legal matter,” Abu Khattala is eligible for both trial before a military commission and for detention at Guantanamo.

This week, the Supreme Court ruled in Riley v. California that police officers cannot search a suspect’s cell phone without a warrant. Wells brought us the initial coverage. Tim Edgar considered the opinion and noted that now, “the intelligence community has some reason to be nervous.”

On Tuesday, Wells highlighted opinions from the federal District of Oregon in United States v. Mohamud and Latif v. Holder. Jane outlined the developments in Mohamud. Later, Matt Danzer summarized Judge Anna Brown’s ruling in Latif v. Holder. Bobby brought us a guest post from Professor Jeff Kahn of Southern Methodist University’s School of Law, who found that the opinion was “a long time in coming.”

Steve considered some of the possible consequences of a case from a few months ago, Aamer v. Obama, in which the D.C. Circuit Court found that Boumediene v. Bush “invalidated the habeas-stripping provisions of the 2006 Military Commissions Act in its entirety.”

Matt shared all of the important amendments offered to the House of Representatives’ recently passed FY 2015 Defense Appropriations Act. Paul later highlighted one amendment he found particularly foolish.

Stewart Baker brought us this week’s Steptoe Cyberlaw Podcast. Ralph Langner, director of Langner Communications and a nonresident fellow at the Brookings Institution, contributed as the guest speaker. Under discussion were Stuxnet and other cyberattacks on commercial industrial control systems.

In this week’s Bits and Bytes, Paul noted cyberattacks sustained by Hong Kong’s online voting platform and Reuters, in addition to Google’s recently released “fork” on OpenSSL. He later flagged a request submitted to ICANN by a group of American terror victims and their families in order to seize Iran’s domain name. While he sympathized with the victims, Paul maintained that “if U.S. courts were seen as a forum for divesting a sovereign nation of its top-level country code domain that would simply reinforce the . . . view . . . that the U.S. is not a neutral custodian of the network.”

Ken highlighted a recent essay of his own on comparative constitutional law, the use of foreign case law in rulings by U.S. courts, and the Alien Tort Statute. Published by Social Science Research Network, the paper is entitled “Through Our Glass Darkly: Does Comparative Law Counsel the Use of Foreign Law in U.S. Constitutional Adjudication?”

And that was the week that was.