The Week That Was

The Week That Was: All of Lawfare in One Post

By Tara Hofbauer
Saturday, July 12, 2014, 10:00 AM

Two articles based on the cache of documents leaked by former NSA contractor Edward Snowden were published this week. On Sunday, Barton Gellman, Julie Tate, and Ashkan Soltani of the Washington Post revealed that “ordinary Internet users . . . far outnumber legally targeted foreigners in the communications intercepted by the National Security Agency.” Ben posted his thoughts on the story and noted that in sharing “many tens of thousands of personal communications” with the Post, Snowden himself is guilty of “a huge civil liberties violation.” Ben’s comments invited a wave of criticism, but he stood by what he said and later responded to a non-sequitur challenge from the Atlantic’s Conor Friedersdorf.

On Wednesday, Glenn Greenwald and Murtaza Hussain published an article on five Muslim-Americans who have allegedly been targeted for surveillance by the NSA and FBI. Ben noted the article, pointing out that it lacks “any sense of what was actually in the relevant FISA applications.” Wells posted the joint response of the Department of Justice and Office of the Director of National Intelligence to Greenwald’s piece. They noted that no American is targeted “solely because they disagree with public policies or criticize the government.” However, a number of civil liberties and human rights organizations are unsatisfied. Wells flagged a letter they sent to President Obama asking for a fuller explanation of the government’s actions.

Stewart Baker gave us the latest episode of the Steptoe Cyberlaw Podcast. He noted that “it was a surprisingly newsy week for NSA,” thanks to the stories from Greenwald and the Post. David Heyman, former Assistant Secretary for Policy at the U.S. Department of Homeland Security, served as this week’s guest speaker.

Cody Poplin provided this week’s Lawfare Podcast, featuring a discussion with Brad Smith, Executive Vice President and General Counsel of Microsoft. Smith considered the future of technological innovation and the need to balance national security and civil liberties interests.

I highlighted three FISC telephone metadata orders that the Justice Department released in redacted form on Tuesday.

Ben shared news that the Senate Judiciary Committee will soon review a bill with a number of proposed amendments to the Freedom of Information Act.

In an installment of Bits and Bytes, Paul relayed news that Chinese hackers have begun targeting U.S. think tanks and that the Secret Service arrested a Russian man known as “one of the world’s most prolific traffickers of stolen financial information.”

Bobby noted Attorney General Eric Holder’s speech in Norway regarding legal strategies for combatting the threat posed by Syrian foreign fighters.

This week’s Foreign Policy Essay considered the recently declared “Islamic State.” Author Thomas Hegghammer, director of terrorism research at the Norwegian Defence Research Establishment (FFI), argued that “business in the jihadi world will largely continue as usual.”

In news on terrorism trials: Jodie Liu summarized this week’s status hearing in the criminal case against Benghazi suspect Ahmed Abu Khattala and noted that the court will next convene on September 9.

Wells informed us that, as a consequence of scheduling conflicts, Army Col. James Pohl will no longer preside over al-Nashiri’s military commission. Air Force Col. Vance Spath will serve in his stead.

Ben highlighted an interesting new argument being made before the D.C. Circuit Court against a GTMO prisoner’s continued detention involving a challenge to the congressional transfer restrictions.

Wells flagged the government’s response opposing Omar Khadr’s motion to overturn his guilty plea. The prosecution argues, “There has been no change in the underlying basis for the Court’s March 7, 3014 Order holding this case in abeyance.”

Following the Supreme Court’s Burwell v. Hobby Lobby ruling, lawyers for two Guantanamo detainees have filed for temporary restraining orders that would allow their clients to engage in community prayer during Ramadan. Wells brought us the motion, which argues that the Religious Freedom Restoration Act safeguards the detainees’ rights.

And that was the week that was.