The Week That Was

The Week that Was: All of Lawfare in One Post

By Tia Sewell
Sunday, January 17, 2021, 12:28 PM

Jen Patja Howell shared this week’s edition of Rational Security, featuring commentary on President-elect Biden’s latest national security appointments and discussion of the historic second impeachment of President Trump:

Quinta Jurecic shared the House Judiciary Committee’s article of impeachment against President Trump and its accompanying report.

Benjamin Wittes argued that while the bipartisan impeachment is an important and necessary step, there are many problems it does not solve.

Howell shared an episode of the Lawfare Podcast, an episode in which Wittes sat down with Lawfare’s Alan Rozenshtein, Bryce Klehm, David Priess, Quinta Jurecic and Susan Hennessey to talk through the issues at hand regarding Trump’s second impeachment:

Keith Whittington disagreed with former Judge Michael Luttig’s assertion that former presidents are beyond the reach of the impeachment power. Howell shared an episode of the Lawfare Podcast featuring Jack Goldsmith’s interview with Brian Kalt, a law professor at Michigan State University, about the issue of late impeachments, in which the Senate would not hold its trial until after Trump leaves office:

Sean Joyce and David Kris examined how law enforcement may have collected intelligence about the threat of political violence prior to the pro-Trump mob’s siege of the Capitol. Carissa Byrne Hessick explained why it seems likely that prosecutors could file felony murder charges against at least some of the rioters who participated in the Jan. 6 violence at the Capitol.

Bobby Chesney and Steve Vladeck shared an episode of the National Security Law Podcast discussing the legal issues surrounding the Jan. 6 insurrection in Washington:

Herb Lin and Amy Zegart proposed language for legislation that would create a commission on the siege and occupation of the Capitol, which resulted in the deaths of five people.

Lester Munson shared an episode of Fault Lines about the continued crisis on Capitol Hill, with discussion on how Congress should respond to the attack, whether impeachment proceedings are moving quickly enough and how China is capitalizing on the event:

Jordan Schneider shared an episode of ChinaTalk featuring an interview with Matt Brazil on his new book co-written with Peter Mattis about Chinese Communist espionage:

Herb Lin explained why Americans should be concerned about the longer-term cybersecurity implications of the Jan. 6 occupation of the Capitol.

Paul Rosenzweig argued that a massive cybersecurity breach at Parler, a social media platform used largely by Trump supporters, will likely enable the U.S. government to prosecute rioters from the Jan. 6 insurrection with more ease.

Evelyn Douek argued that the Facebook Oversight Board should review the company’s highest-profile content moderation decision yet: its suspension of Trump.

Jacob Schulz analyzed the cases currently on the inaugural docket for Facebook’s recently established Oversight Board.

Schulz also explored the implications of Twitter’s removal of President Trump from its platform—both for Trump and for the company itself.

Jen Patja Howell shared this week’s edition of the "Arbiters of Truth" series on disinformation on the Lawfare Podcast featuring an interview with Johnathan Zittrain, a Harvard law professor, about platforms’ decisions to ban president Trump following his incitement of violence at the Capitol:

Dan Byman and Aditi Joshi argued that social media companies need to develop better emergency protocols to counter the exploitation of malign users seeking to foment violence.

Gary Corn argued that SolarWinds is bad, but a retreat from the U.S.’s proactive defense strategy in cyberspace would be worse.

Kristen Eichensehr shared her AEGIS series paper explaining how the U.S. policy of “defend forward” in cyberspace raises the stakes of cyber attack attribution questions as a matter of both international and domestic law.

Ciaran Martin warned against the sloganizing of cyberstrategy and argued that the Western governments should be wary of the snake-oil sales pitch of offensive cyber as a deterrent.

Bill Priestap and Holden Triplett discussed how nations are using espionage during the pandemic to collect information, engage in information warfare and exploit contact-tracing platforms.

Stewart Baker shared an episode of the Cyberlaw Podcast featuring an interview with Zach Dorfman about his work on U.S.-Chinese intelligence competition in the last decade and discussing the latest developments in cyber policy news:

Howell shared an episode of the Lawfare Podcast, in which Jamie Gorelick, the deputy attorney general under President Clinton, spoke with Wittes about Biden’s Justice Department nominations:

Jacob Schulz shared the Justice Department inspector general’s report detailing numerous failures surrounding the Trump administration's “zero tolerance” immigration policy, which resulted in family separations at the border.

Russell Spivak and Wittes revisited Devin Nunes’s famous memo and argued that while some points were valid, the document also contained blatant and intentional falsehoods.

Schulz shared the National Security Agency’s newly released document pertaining to the rules governing signals intelligence (SIGINT) collection. David Kris explained why the SIGNIT annex document is significant and shared his paper discussing the most important takeaways. Howell shared an episode of the Lawfare Podcast in which Kris, who formerly served as an assistant attorney general for the National Security Division, spoke with Wittes about SIGINT collection and outlined what readers should know about the newest NSA annex:

Robert N. Stavins discussed the incoming Biden administration’s plans for international climate change policy and action. Steve Stransky argued that the Biden administration should adopt new programs for combatting white supremacy and domestic terrorism in its security strategy. William Loomis and Stewart Scott proposed that the Biden administration should secure the U.S. software ecosystem by reforming the government vulnerability disclosure process into a more transparent system.

Stephen Rademaker explored whether there are fast-track routes that would enable the Biden administration to rejoin the Open Skies Treaty, an arms control agreement with Russia.

Andi Wilson Thompson assessed the Trump administration’s vulnerabilities equities process, arguing that the government has failed to deliver on its promises of greater transparency.

Tia Sewell explained how the Trump-appointed CEO of the U.S. Agency for Global Media attempted to politicize his federal agency and propagandize its subsidiary international media outlets.

Darrell West shared an episode of TechTank about how people using online dating apps can protect their privacy and security:

Bruce Riedel reviewed “His Very Best: Jimmy Carter, a Life,” a biography of the 39th U.S. president written by Jonathan Alter.

Shalev Roisman reviewed Saikrishna Bangalore Prakash’s book, entitled “The Living Presidency: An Originalist Argument Against its Ever-Expanding Powers.”

Patrick McDonnell summarized the oral argument in the Supreme Court’s Collins v. Mnuchin, a case that may determine Congress’s ability to limit the president’s removal power.

Coleman Saunders summarized the oral argument in the Supreme Court’s Federal Republic of Germany v. Philipp, a case which examines the “expropriation exception” of the Foreign Sovereign Immunities Act (FISA).

Jeremy Gordon summarized the oral argument in the Supreme Court’s Hungary v. Simon, a case which examines whether courts can abstain from hearing lawsuits against foreign sovereigns even when FISA has provided the court jurisdiction over the suit.

Kelsey Clinton analyzed oral arguments in the Supreme Court’s Nestlé USA, Inc. v. Doe I and Cargill, Inc. v. Doe I cases, which consider whether a U.S. company can be sued for alleged violations of international human rights abroad under the Alien Tort Statute.

Bryce Klehm announced this week’s Lawfare Live, in which members of the Lawfare team will take questions from the Lawfare community that deal with crimes related to the Jan. 6 assault on the Capitol, impeachment and the inauguration:

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And that was the week that was.