The Week That Was

The Week That Was: All of Lawfare in One Post

By Tara Hofbauer
Saturday, August 2, 2014, 9:00 AM

On Tuesday, Senate Judiciary Chairman Patrick Leahy (D-VT) announced his version of the FISA reform bill. Wells brought us the news. Jodie and Ben then summarized the bill, including its major provisions and its differences from the House of Representatives’ USA Freedom Act. Ben followed up with his opinion of the legislation, while Jodie compiled the reactions of lawmakers, the administration, industry leaders, and civil rights groups.

Orin Kerr looked at the bill’s Foreign Intelligence Surveillance Court (FISC) reform measures and noted that they might not square with Article III of the U.S. Constitution. Steve Vladeck disagreed, asserting that there is “a pretty big difference between an unusual certification procedure and an unconstitutional one.”

Lauren Bateman highlighted news that Senators Jon Tester (D-MT), Jeff Merkley (D-OR), Mark Begich (D-AK), and John Walsh (D-MT) wrote a letter to Director of National Intelligence James Clapper noting their concern with the National Security Agency’s (NSA) understanding of Section 702 of the FISA Amendments Act of 2008.

On Thursday, the Central Intelligence Agency (CIA) Inspector General released a summary of an investigation affirming that “five Agency employees, two attorneys, and three information technology (IT) staff members improperly accessed or caused access to the SSCI Majority staff shared drives.” Ben remarked that, though he has so far refrained from commenting on the dispute between the CIA and the Senate Intelligence Committee, this latest revelation paints “an ugly picture.”

Over the weekend, Bobby, Jack, Matt Waxman, and Ben noted statements made about Authorization for Use of Military Force (AUMF) reform by U.S. Homeland Security Advisor Lisa Monaco at last week’s Aspen Security Forum. They pointed out that her comments “seem to represent a shift from the White House’s prior position that Article II constitutional authorities are sufficient and appropriate for dealing with terrorist threats outside existing AUMFs.” Following criticism of this conclusion at Just Security, Ben posted the transcript of the relevant portions of Lisa Monaco’s discussion. Later in the week, he also linked to an AUMF discussion on the podcast, DecodeDC.

Wells considered the future of President Obama’s post-2001 AUMF authority by examining recent action regarding the 2002 Iraq AUMF. He then noted contradictory action on the part of House Armed Services Committee Chairman Howard “Buck” McKeon in relation to the Iraq AUMF.

Ben highlighted news that Russia has yet to extend former NSA contractor Edward Snowden’s political asylum. Ben later offered “four bad reasons” for thinking Russian President Vladimir Putin may be hanging Snowden out to dry, while Carrie Cordero examined the operational damage wrought by the Snowden disclosures.

Jack explained why he is still skeptical that U.S. indictments of Chinese officials will actually stop Chinese cyberespionage and cybertheft.

Paul informed us that Chinese hackers have a new victim: Israel.

Stewart Baker shared the Steptoe Cyberlaw Podcast. This week’s guest speaker was Richard Danzig, who served as U.S. Secretary of the Navy from 1998 to 2001 and is currently the Vice Chair of the Board of Trustees of the RAND Corporation and a Board Member of the Center for a New American Security. Under discussion is the topic of his latest paper: “Surviving on a Diet of Poisoned Fruit.”

Cody posted this week’s Lawfare Podcast, which featured a speech by Professor Fernando Reinares, a senior analyst at Elcano Royal Institute, on the Madrid 3/11 bombings and jihadism in Western Europe.

Afshon Ostovar, a Middle East Analyst at the Center for Naval Analyses’ Center for Strategic Studies, wrote this week’s Foreign Policy Essay, which examined Iranian assistance to the Iraqi government.

Paul updated us on the case to seize the Iran domain name (.IR).

John examined two “potentially conflicting” Alien Tort Statute cases, which were recently decided by the Fourth and Eleventh Circuits.

Ben flagged a recent---and heavily redacted---opinion in the 7th Circuit’s U.S. v. Daoud.

Wells informed us that in Hatim v. Obama, the D.C. Circuit reversed the lower court’s opinion, finding that new policies regarding Guantanamo detainees’ access to counsel “are reasonable security precautions.” Jane Chong summarized the case.

John noted again that the position of Legal Adviser of the U.S. Department of State has been vacant since January 2013 and explained why this is a problem.

Ken Anderson recommended Emory University law professor Laurie Blank’s column in the Hill regarding proportionality in the conduct of operations during the current Israeli-Palestinian conflict. Ken also encouraged readers to check out Cornell University law professor Jens Ohlin’s guest posts at Opinio Juris.

Ashley Deeks informed us of the recent publication of Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies, which contains a chapter that she wrote.

And that was the week that was.