The Week That Was

The Week That Was: All of Lawfare in One Post

By Benjamin Bissell
Saturday, September 27, 2014, 9:55 AM

News broke two days ago that US Attorney General Eric Holder is stepping down. Ben posited that the White House should consider David Kris as his replacement, in part because Kris possesses the “granular experience in the national security space” that the job now requires.

Jennifer Daskal, Ashley Deeks, and Ryan Goodman asserted that the international legal justification for strikes against ISIS is not the same as that for strikes against Khorasan, and unpacked some of the key divergences.

Jack noted Charlie Savage’s recent New York Times report on the Obama administration’s legal theory for the use of force against ISIS, and argued that while the theory is on relatively strong legal footing, the administration should have asked Congress to authorize this latest campaign.

Jack also wondered why the administration continues to keep Congress in the dark about its “covert” training of Syrian rebels.

noted that President Obama’s speech to the UN General Assembly this week mentioned the structural factors underlying transnational terror in the Middle East, and delineated what some of those factors might be.

Ben and Ken flagged the recent release by the Hoover Institution of Chapters 4 and 5 of their serialized book, Speaking the Law: The Obama Administration’s Addresses on National Security Law.

Ben shared a video of a recent event at the Heritage Foundation entitled, “The Legal Basis for Military Action Against ISIS,” featuring Cully Stimson, Bobby Chesney, Steve Vladeck, and Steve Bradbury.

Cody noted that the UK Parliament authorized airstrikes in Iraq on Friday by a vote of 524-43.

Ben responded to Jeff Stein’s recent Newsweek article entitled, “What Will US Forces do with ISIS Prisoners?” He noted that if the US campaign remains largely air-driven, this question will answer itself, but if it grows to include a ground component, the US will probably transfer the vast majority of detainees to local ground forces, a plan which did not work well in Afghanistan. He also offered a few thoughts on Jessica Schulberg’s recent article at the New Republic on the financial costs of Guantanamo.

Wells noted that the DC Circuit recently ordered the US government to respond to detainees’ petition for en banc rehearing in Hatim v. Obama.

Cody flagged a recent Congressional Research Service report entitled, “Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings.”

Lauren Bateman noted that the Department of Justice filed a motion last week to “intervene, stay, and dismiss” a private lawsuit against an NGO using the state secrets privilege. She also summarized the particulars of the case, which involves the organization United Against a Nuclear Iran.

Relatedly, Ken tipped Lawfare’s readership off about Ashley Deeks’ recent article entitled, “An International Legal Framework for Surveillance,” which has garnered a significant amount of attention on SSRN.

Jane shared the government’s response-and-reply brief in Klayman v. Obama, which was filed last Friday. In addition to summarizing its main arguments, she noted that the ACLU moved to participate in oral argument.

investigated how the Chinese government has consolidated and strengthened its internet regulatory agencies over the past few months, and outlined how the recent centralization drive could impact the “open internet” ideal globally.

Paul Rosenzweig noted how more and more companies are utilizing encryption software, mostly because of “the business necessity of appearing resistant to government surveillance.” He also delineated some of the legal and practical implications of this encryption transition.

Stewart Baker provided this week's Steptoe Cyberlaw Podcast, which featured Julian Sanchez, senior fellow at the Cato Institute. The conversation focused on Apple's recent announcement that it would no longer "decrypt iPhones for law enforcement," among other topics.

Sanchez was popular on Lawfare this week; Ben flagged another interview featuring the Cato Institute scholar, in which he spoke on the NSA controversies and surveillance reform.

Bobby shared the most recent installment in the Transatlantic Dialogue series, which featured Professor Guglielmo Verdirame opining on the implications of IHRL’s “expansion into the armed conflict setting.”

Ben flagged Jason Leopold’s recent article on the FBI investigation of al Qaeda propagandist Samir Khan, who was killed in a 2011 CIA drone strike alongside Anwar al Awlaki.

In this week’s Lawfare Podcast, Cody provided an address Ben gave at Kenyon College for Constitution Day entitled, “A Constitution Under Chronic Stress.” In the speech, Ben examined the post-9/11 debate in the US over civil liberties and argued how the US’s unique Constitutional framework has shaped its response to topics as varied as drone strikes and cyber security. Ben also announced that the Lawfare Podcast now has its own Twitter feed, which you can follow by clicking here:


For this week’s Foreign Policy Essay, C. Christine Fair, an assistant professor at Georgetown University’s Edmund A. Walsh School of Foreign Service, explained why al Qaeda announced a new affiliate in South Asia and why the group might find success there.

And Wells discovered that Lawfare attracts some unlikely readership demographics.

And that was the week that was.