The Week That Was

The Week that Was: All of Lawfare in One Post

By Tara Hofbauer
Saturday, August 9, 2014, 10:00 AM

Yesterday, the U.S. conducted air strikes and aid drops in response to the ongoing crisis in Iraq. Wells informed us on Thursday that President Obama was considering renewed U.S. involvement in Iraq. Cody and Jack shared the news when the strikes occurred. Jack considered the domestic legal basis for such action and came up with three potential justifications: the 2001 Authorization for Use of Military Force (AUMF), the 2002 Iraq AUMF, and inherent executive authority under Article II of the U.S. Constitution. He later returned to the idea of Article II power and further examined what it would mean for the President to rely on inherent authority in relation to a purely humanitarian operation.

Given these recent events, this week’s Foreign Policy Essay, written by Seth Jones, director of the RAND Corporation’s International Security and Defense Policy Center, was prescient. It focused on the example of Iraq for the withdrawal of U.S. forces from Afghanistan.

Meanwhile, Libya also slips further into chaos. Matt Waxman highlighted an article he wrote on the matter for CNN’s Global Public Square.

Ben shared the Lawfare Podcast, which featured a conversation on the current Israeli-Palestinian conflict with Natan Sachs, Khaled Elgindy, and Tamara Cofman Wittes.

Orin Kerr further weighed in on the discussion from last week on the Article III problems he sees with Senator Patrick Leahy (D-VT)’s National Security Agency (NSA) reform bill. Steve Vladeck provided a reply, considering the broader constitutionality of the Foreign Intelligence Surveillance Court. Orin then shared his final thoughts on “the prudential limits of justiciability and . . . Article III.” Later, Ben noted the release of a letter written by U.S. District Judge John Bates, director of the Administrative Office of the Courts, which criticized the bill’s proposed public advocate.

Ben informed us that Russian President Vladimir Putin has extended former NSA contractor Edward Snowden’s asylum. He then shared his recent Twitter exchange with Glenn Greenwald in regard to the news.

Taj Moore examined the relevant changes to the current Freedom of Information Act (FOIA) represented by the proposed FOIA Improvement Act of 2014.

As we anticipate the release of the Senate Select Committee on Intelligence (SSCI)’s report on the Central Intelligence Agency (CIA)’s post-9/11 use of torture, Wells highlighted a statement made by SSCI Chairwoman Dianne Feinstein (D-CA) on the nature of the redactions from the executive summary. Joseph Margulies, an attorney representing Guantanamo detainee Abu Zubaydah, considered “the din of the spin machines” that will follow the report’s release.

In United States v. Al-Nashiri, a weeklong pre-trial motions hearing began Monday before Air Force Col. Vance Spath, the case’s new judge. Beforehand, Wells flagged the Chief Prosecutor Mark Martins’ statement. Ben noted Martins’ remarks on the effects of the decision in United States v. Al-Bahlul, calling them “a bit of a wow.” Wells then posted dispatches from Monday’s session before Judge Spath. After providing a programming note, he shared coverage from Tuesday’s session, which was reported by Lauren Bateman, and Wednesday’s session, which was covered by Zoe Bedell. Finally, Wells highlighted a statement from Chief Prosecutor Martins on the conclusion of the week’s hearing.

In other Guantanamo news: Ben noted Judge Gladys Kessler’s denial of detainee Mohammed al-Adahi’s motion to reopen his case.

Wells shared comments from David Remes, a defense lawyer in Hatim v. Obama, on the D.C. Circuit Court’s ruling in that case.

Taj summarized the U.S. District Court for the District of Columbia’s opinion in Al Odah v. United States.

Jack highlighted Dan Geer’s speech on cybersecurity at the Black Hat conference.

Ken Anderson noted the publication of an article on autonomous weapon systems by Geoff Corn.