The Week That Was

The Week That Was: All of Lawfare in One Post

By Tara Hofbauer
Saturday, August 23, 2014, 10:00 AM

If U.S. involvement in Iraq increases, can discussion of the President’s war powers under Article II be far behind? Jack noted the politics at play in the lack of congressional authorization for the use of force against the Islamic State. He then presented the case for why the President should seek congressional support for U.S. operations in Iraq.

On Sunday, Bobby examined the President’s recent War Powers Resolution notification regarding U.S. airstrikes conducted in support of Iraqi and Kurdish efforts to retake control of the Mosul Dam. He compared this most recent letter to others he has sent to Congress with respect to the current situation in Iraq. John Bellinger later explained how War Powers resolutions are drafted.

Following the discussion of Article II powers and congressional authorization, Wells considered the War Powers Consultation Act of 2014, a bill which, after being introduced in January, “has seen no further action.”

Jack examined an excerpt from a New York Times piece about the unsuccessful operation to rescue American journalist James Foley; he noted the “absurdity of administration and DOD officials talking to reporters . . . about a classified operation, but insisting on anonymity because the operation is classified.”

Ben considered the Times’ recent articles on terrorist extortion and ransom payments and pointed out that, given the evidence, “the right answer is not to pay.”

John noted an Economist article on the use of lawfare against the British Ministry of Defence.

Matt Waxman shared a number of essays and articles he recommends for gaining understanding of the current situation between Israel and Gaza and the law of armed conflict.

Wells flagged a report by the Government Accountability Office, which found that the Department of Defense violated the 2014 Defense Appropriations Act in failing to inform Congress thirty days in advance of the release of five Guantanamo detainees in exchange for Sgt. Bowe Bergdahl.

Wells, Andy Wang, Jodie Liu, and Taj Moore analyzed a recently released brief submitted to the Foreign Intelligence Surveillance Court (FISC) in 2004 on the email metadata program.

Cody flagged two new documents released by the Office of the Director of National Intelligence (ODNI) in relation to the Foreign Intelligence Surveillance Act (FISA)’s Pen Register/Trap and Trace provision.

Ben studied a recently released Office of Legal Counsel (OLC) memo, which he found “suggestive” of the origin of the word “imminence” in the government’s legal justification for targeted killing.

Jane Chong highlighted two amicus briefs submitted separately by the Center for National Security Studies and the Electronic Frontier Foundation, American Civil Liberties Union (ACLU) and the ACLU of the Nation’s Capital in support of appellees in Klayman v. Obama.

Steve Vladeck shared an amicus brief he co-authored on behalf of the National Institute of Military Justice in support of Ali al-Bahlul. Jane then posted another amicus brief written on behalf of al-Bahlul by Professor David Glazier of Loyola Law School; she later flagged three more.

Ben highlighted a Wired interview with Edward Snowden conducted by James Bamford.

Stewart Baker brought us the Steptoe Cyberlaw Podcast, which featured a debate with Harley Geiger, Senior Counsel and Deputy Director for the Freedom, Security and Surveillance Project at the Center for Democracy and Technology, on Senator Patrick Leahy (D-VT)’s NSA reform bill.

In this week’s Foreign Policy Essay, Jonathan Pollack, a senior fellow in the John L. Thornton China Center and the Center for East Asia Policy Studies at the Brookings Institution, analyzed the Japanese Cabinet’s “constitutional reinterpretation” embracing collective self-defense.

And that was the week that was.