The Week That Was

The Week that Was: All of Lawfare in One Post

By Benjamin Bissell
Saturday, November 1, 2014, 9:10 AM

This week, Lawfare instituted the very first edition of the #BrookingsFightClub. You can check out here the first titanic struggle of the series between Editor and Chief Benjamin Wittes and me, the lowly intern given a shot at the boss. (A certain Managing Editor may also make an appearance in a bunny suit.)

Lawfare contributors devoted a few posts to the upcoming Zivotofsky v. Kerry case, which will begin with oral arguments this coming Monday, November 3. Jodie Liu provided a preview of the opening arguments and the facts of the case, which involves a dual Israeli-American citizen born in Jerusalem who is petitioning the US to recognize Israel as his country of birth on his passport. Julian Davis Mortenson harkened back to William Blackstone’s Commentaries on the Laws of England to explain why the Supreme Court should stay far away from the Vesting Clause in the case. Jack argued that the Court should resolve Zivotofsky by ruling that Congress lacked power to enact this “bald foreign policy legislation” under Article 1.

Cody linked to a letter sent by House Armed Services Committee Chairman Buck McKeon (R-Ca.) to Secretary of Defense Chuck Hagel that called for a suspension of all detainee transfers from Guantanamo.

Jane noted that the DC Circuit issued a per curiam order this week that denied the detainees’ petition for an en banc rehearing in Hatim v. Obama.

Naz Modirzadeh finished her debate with Marty Lederman over the consequences of merging distinct LOAC and human rights legal doctrines. Charles Kels later wrote a follow-up post to their exchange focusing on the principle that US armed forces comply with the LOAC in counterterrorism activities.

John Bellinger joined the discussion about the extraterritorial application of the Convention Against Torture (CAT). He explored what the New York Times editorial last Tuesday got wrong on the subject and the “difficult question” of whether or not US detention activities are governed by the CAT or by international humanitarian law.

Jack followed up his earlier CAT post by providing “a bit more” on the debate over the extraterritorial scope of its provisions on cruelty.

In two posts here and here, Ben discussed whether or not the Postal Service’s metadata program will generate the sort of “outrage” and legal challenges that the NSA’s program has. His answer: probably not. So far, anyway, he seems to be right.

Carrie Cordero argued that in the post-Snowden era, the government should pursue “substantive transparency” about three things: (1) what the intelligence community knows about national security threats, (2) how the US interprets this data and (3) how these interpretations are connected to policy.

Wells linked to Henry Farrell’s recent essay in the National Interest, which criticized the critics of Snowden and Greenwald.

Cody shared the news that Federal authorities have identified the suspected “second leaker” in the Snowden case.

Paul reminded us that Russian cyber hackers are just as dangerous as their more infamous Chinese counterparts and shared news about a new Russian threat nicknamed APT28. Still, in the interest of fairness, he also shared news about a Chinese APT codenamed “Axiom.” In addition, he noted the FCC’s entrance into the cybersecurity business and a panel on cyber at the upcoming ABA Review of National Security Law.

Jack remarked on the failure of National Security Advisor Susan Rice to consult with the Department of Defense when she wrote a letter to Congress last summer asking for the 2002 AUMF’s repeal.

Matthew Waxman shared a description of the new project by the Center for a New American Security (CNAS) on autonomous weapons entitled, “Ethical Autonomy.”

Apropos of autonomous weapons, Cody highlighted some “dronestagrams” taken by the unmanned vehicles.

Ben wrote a follow-up to his earlier piece on the North Korean Ambassador to the UN’s speech at the Council on Foreign Relations and criticized the “tone and substance” of the treatment the ambassador received at CFR.

Ashley Green reviewed the new book, “Lone Wolf Terrorism: Understanding the Growing Threat,” by Jeffrey D. Simon. She concluded that while Simon has some problems elucidating the difference between “terrorists” and other agents, such as “assassins,” his book gives a “basic analytic framework” for understanding lone wolves as an emerging threat.

William McCants, a Brookings scholar who runs the Project on US Relations with the Muslim World, wrote this week’s Foreign Policy Essay: “The Sectarian Apocalypse.” In it, he argued that it is imperative to understand the motivations of ISIS militants and that the eschatological elements of the conflict “run deep.”

Wells brought us the 97th episode of the Lawfare Podcast, which featured Lawfare's and Just Security's Steve Vladeck and Kevin Jon Heller of Opinio Juris. The discussion focused on the Bahlul case and the significance of the Quirin ruling.

For the 40th iteration of the Steptoe Cyberlaw Podcast, Stewart Baker interviewed Bob Litt, the General Counsel of the Office of the Director of National Intelligence. They discussed, among other things, the latest ODNI project and the NSA.

And that was the week that was.