The Week That Was

The Week That Was: All of Lawfare in One Post

By Benjamin Bissell
Saturday, October 4, 2014, 9:50 AM

First things first: one Lawfare post has gone viral this week, causing Lawfare to break all of its previous daily traffic records yesterday. If you have not already checked out Jennifer Williams’ piece on how she, a blonde, tattooed Texas girl, became an international ISIS Twitter star, stop what you are doing, and click here.

On the subject of ISIS and instability in the Middle East in general, Naz Modirzadeh examined the unintended consequences of blending human rights into LOAC. Later, she responded to Marty Lederman’s critique of her article.

Ben recommended Daniel Byman and Jeremy Shapiro’s new Foreign Affairs essay, which claims that the threat of returning jihadists, while real, is “overblown.”

Jack noted that in light of reports of a reconciliation between ISIS and Jabhat al Nusra, the President’s AUMF argument is getting stronger. He also wrote a piece on why it matters whether ISIS was “AUMF-able” last year.

Ben noted that the US political system has reached a moment of “special paralysis,” where even agreement on an ISIS AUMF produces a stalemate between the executive and legislative branches.

Jack responded to an article by Glenn Greenwald this week that expressed skepticism towards the US government’s threat claims regarding Khorasan. Ben had a “less generous” take than Jack on Greenwald’s assertions, and Cody disputed the contention that Khorasan came “out of nowhere.” Bobby, yesterday, observed that the real problem with Khorasan is with the name.

Matt Waxman flagged a preview of Leon Panetta’s upcoming memoir, which reportedly “slams” the White House on the withdrawal from Iraq.

Jack explained why Harold Koh’s legal defense of the Administration’s interpretation of the 2001 AUMF is significant.

Kenneth Anderson recommended Marc Sageman’s recent article, entitled, “The Stagnation in Terrorism Research.”

Finally, in this week’s Foreign Policy Essay, “The Islamic State’s War Machine,” Austin Long, an assistant professor at Columbia University, examined how ISIS has institutionalized itself and why that makes it less susceptible to leadership targeting.

Wells, in non-ISIS news, introduced a new feature: digests of the massive trove of declassified CIA documents the agency recently released.

In response to the pro-democracy protests in Hong Kong this week, I examined how the official PRC media is covering (or not covering) the instability there. I also pointed out how many demonstrators in the semi-autonomous city eschew using the Internet for organizing protests, and instead opt for a less-regulated medium: Bluetooth.

Lawfare was the scene of lively debate this week between Steve Vladeck and Peter Margulies over al Bahlul v. United States, the major challenge to the power of Gitmo commissions to try war crimes that are non-international. On Tuesday, Steve asserted that the briefs filed last Monday by Peter and James Schoettler in support of the government were lackluster in their treatment of the “main question:” “whether Article III . . . mandates trials of non-international war crimes by non-US military personnel in civilian, rather than military, courts.” Peter responded, arguing that Steve’s post “does not do justice to the Framers’ carefully considered view of the interaction between Article III and Congress’s war powers.” Here is Steve’s response to that post, Peter’s counter-response, and Steve’s final word in the exchange.

On the topic of surveillance, Susan Landau argued that despite the FBI’s protests, the decision by Apple and Google to encrypt their phones “is long overdue” and “the only sensible decision for our security.”

I translated a recent speech by Russian President Vladimir Putin on cyber, and highlighted some key points.

Paul Rosenzweig noted that ABA Publishing just released a new book, Whistleblowers, Leaks and the Media: The First Amendment and National Security, of which he is a co-editor. The book also includes chapters from Lawfare contributor Steve Vladeck. Paul also explained the recent hubbub over a decision to “consider transferring a phone switching contract from an American company (Neustar) to an American division of Ericsson, the Swedish telecom giant.”

I flagged this week’s release of the 2014 National Intelligence Strategy by Director of National Intelligence James R. Clapper. Cody noted a recent post on the Brookings Tech Tank blog by Joshua Bleiberg, which summarizes Ryan Calo’s argument for a Federal Robotics Commission.

Matt pointed out on Tuesday that plans to close Guantanamo are reportedly stalled. Jane Chong summarized a decision requiring that videos of Guantanamo detainees being force fed need to be released publicly.

Cody flagged the news that the judge accepted a plea deal in the Adel Abdul Bary case.

Ben noted Diane Webber’s account of the European Court of Human Rights’ decision in Hassan v. United Kingdom.

Andy Wang speculated as to whether the Supreme Court will take up Mehanna.

John noted that in a spate of new ATS decisions, “courts are divided about the meaning of Kiobel’s ‘Touch and Concern’ standard.”

In the 93rd iteration of the Lawfare Podcast, Ben caught up with Dan Carlin, the brains behind the wildly-popular Hardcore History podcast. They discussed the WWI series, surveillance, and ISIS, among other topics.

Stewart Baker brought us this week’s Steptoe Cyberlaw Podcast, which featured an interview with Admiral David Simpson, Chief of the FCC’s Public Safety and Homeland Security Bureau. They discussed Chairman Wheeler’s initiative on cybersecurity.

Finally, Ben posted a captivating video of drones dancing in a swarm of lights over Austria. Regardless of the pressing legal questions drones’ use may pose, this is pretty cool.

And that was the week that was.