The Week That Was

The Week That Was: All of Lawfare In One Post

By Nick Basciano
Saturday, December 7, 2013, 11:00 AM
Detention:  In Ali v. Obama the D.C. Circuit denied Abdul Razak Ali's habeas appeal. Raffaela gave a full summary of the Court's decision, and Steve discussed whether the concurring opinion of Judge Edwards suggests that post-Boumediene jurisprudence has made habeas review of this sort "functionally useless." Ben looked at Judge Edwards' concurring opinion to show why Judge Edwards' conclusion may have more to do with procedural items than with the scope of detention authority. Wells noted Edwards' concurrence in another case, that of Abdul al Qader Ahmed Hussain, who now has petitioned for certiorari.
Jane updated us on three developments in Aamer v. Obama, the D.C. Circuit case on force-feeding. She also noted the attempt by the detainees to address changes in force-feeding procedures  even though the government has characterized the new procedures as "essentially the same."
Raffaela noted that two Guantanamo detainees have been transferred to Algeria, bringing the total number of detainees at Guantanamo to 162. She also summarized the status of now-former Bagram detainee Hamidullah's appeal before the D.C. Circuit and previewed the issues that are likely to be in play during next week's oral arguments in Hatim v. Obama.
Wells and Zach broadly overview the various counsel restrictions imposed on in the Dzhokhar Tsarnaev case as well as those in the Guantanamo 9/11 trial.
O Tannenbaum:  With over 500 attempted amendments, the NDAA now resembles a "Christmas tree" with too many "ornaments." Paul gave us all the details on Senator Rockefeller's Cybersecurity Act of 2013, a bill that may become one such ornament on the NDAA tree. John looked at a proposed amendment that would change the Anti-Terrorism Act and create a "mini Alien Tort Statute." Raffaela gave an overview of yet another ornament proposed by Senators Wyden, Udall, and Mikulksi---this one attempting to expand mandatory FISA disclosures.
Cyber Paul-day:  Paul gave some imaginative musings on how 3D printing will "severely disrupt our concepts of warfare and weaponry" and pointed out the "Immediate Opportunities for Strengthening the Nation’s Cybersecurity" as formulated by the President’s Council of Advisors on Science and Technology. Malware has a whole new way to steal your data (and it doesn't even require a network connection)--and Paul had the scoop.  To cap it off, he offered a quick discussion of the FTC's attempt to gain clear legislative authority to enforce a "uniform set of national data breach notification requirements," an action that would make the “most important cybersecurity case you’ve never heard of" moot.
FISA:  In a must-read piece, Joel Brenner gave an in-depth explanation of how NSA and US Intelligence arrived at their current predicament and of what should be done moving forward. Matt D. gave a full blow-by-blow of oral arguments in ACLU v. Clappera challenge to bulk telephony metadata collection under Section 215 of the PATRIOT Act. Peter Shane, a law professor at Ohio State University, looked at the FISC's "institutional compromise" and its significance for legislative authorization and judicial oversight. Jane posted a summary of two United States Signals Intelligence Directives (USSID) continuing Lawfare's coverage of the latest ODNI declassification trove. Ben pointed out a Guardian article that discusses the EU's attempts to reel in data sharing practices post-Snowden, and its struggle to do much about Britain's GCHQ. Wells posted coverage of President Obama's comments; the latter apparently will require NSA to use more "self-restraint" in its collection efforts.
Ben introduced the "Foreign Policy Essay"---a weekly essay of foreign and military affairs that will be curated by Brookings' own Dan Byman. To kick the feature off, Dan posted “Seven Things to Know About Iran’s Revolutionary Guards” by Afshon Ostovar, senior analyst at CNA. The following edition was Erik Gartzke's “Fear and War in Cyberspace," an article which generated a response from Paul, who considered Gartzke's conclusions in light of two recent cyber war games.
Five years ago, in "the most important terror attack since 9/11," a group of 10 terrorists killed 164 people in Mumbai. Ben linked to an article by his colleague and distinguished terrorism expert Bruce Riedel, who looked back on the attack with the clarity and context which time brings. Riedel also wrote in with a well-informed review of The Siege: 68 Hours Inside the Taj Hotel by Adrian Levy and Cathy Scott-Clark.
Ben explained why Eugene Robinson's Washington Post article vilifying drones on moral grounds missed its mark.
The air is tense in the East China Sea, and Ken directed us to a reading on Air Defense Identification Zones by Naval War College professor Peter A. Dutton in the American Journal of International Law.
Clive Walker, a professor at University of Leeds, discussed the upcoming review of the UK's policy on Deportation With Assurances (DWA).
Ingrid examined the recent nuclear agreement with Iran to determine if it is "legally binding."
Ashley followed up on her previous look at the U.N.'s need to develop a formal set of procedures to govern detentions.
Orin gave a few additional comments on the simmering debate over a global right to privacy.
It's an extraordinary time for the national security press, and Jack gave an explanation as to why press freedom is more broad and more secure than ever before. Paul published a guest post from Rafal Rohozinski, senior fellow at the International Institute for Strategic Studies (UK) and founder of Sec Dev, who takes a close look at disclosures of alleged Canadian spying to suggest that Glenn Greenwald's reporting of the Snowden leaks is "opportunistic and misleading."
In a significant long form piece, Ben and Ritika looked at Founding Father James Madison’s struggle to balance security and federal power. But Madison was far from alone in his indecision. Ben and Ritika explain why in Madison's vacillations, we see "fascinating harbingers of our own."
Lawfare Podcasts:
     Episode #49: A Panel at NYU on “Law and Strategy in the Executive Branch”
     Episode #50: DIA Chief Lt. General Michael T. Flynn speaks at Brookings
Ben linked to an Intelligence Squared debate on the motion “Spy on Me, I’d Rather Be Safe.” Arguing for are Stewart Baker and Richard Falkenrather. Arguing against are David Cole and Michael German.
Ritika posted two calls for papers. The first from Syracuse University's Maxwell School for Citizenship and Public Affairs asks for submissions for their upcoming publication "The Pivot:  Challenges to Global Security in Asia." The second come from the Lieber Society on the Law of Armed Conflict and asks for a piece on the understanding and implementation of the law of war.
And if by chance you missed it, here's Steven Colbert with the week's last word.
And that was the week that was.