The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, January 17, 2015, 9:55 AM

Last week, Bryan Cunningham invited the Lawfare community to debate the proper role of law enforcement and traditional war fighting tools in combating terrorism. Cunningham argued that the discussion was crucial, as the “law enforcement model failed tragically” in the Paris shootings. Wells pushed back against his characterizations of the Bush and Obama administrations' counterterrorism strategies as hewing cleanly to the war and law enforcement approaches, respectively, and questioned whether the war fighting tools that Cunningham saw lacking in France would actually have stopped the Charlie Hebdo attacks. Jack made two further points: first, that the Obama administration has actually not instituted a law enforcement approach to counterterrorism; and second, that the war versus law enforcement distinction ignores the fact that every approach to counterterrorism will include aspects of both.

Cunningham responded by pointing out the political importance of invoking the war approach; he also noted that, semantics aside, he and Jack probably aren't all that far apart on the legal nuts and bolts of counterterrorism. David Kris joined the conversation by sharing a 2010 speech and some excerpts from a 2011 article on the law enforcement versus war debate. In the excerpts, he argued that law enforcement, rather than being opposed to a war effort, is complementary and in fact crucial to winning a war. John Bellinger wrapped up the lively discussion up by posting some excerpts from his 2006 speech at the London School of Economics, in which he stated that both law enforcement and military approaches, when exercised exclusively, are inadequate. The key, then, is not selecting which approach to use, but selecting which approach to use when.

Jane Chong proposed that those claiming that the Charlie Hebdo cartoons had provoked the Kouachi brothers into attacking the newspaper’s offices misunderstand the nature of terrorism. She explained that the Kouachi brothers were not peace-loving individuals driven to murder by offensive cartoons. Rather, they were terrorists searching a suitable target.

Carrie Cordero questioned those commentators who quickly labeled the Kouachi brothers “lone wolves,” pointing out that some of the earliest facts to emerge in the aftermath of the attacks indicated something very different from an operation by two independent gunmen.

In response to the Paris attacks, French Prime Minister Manuel Valls declared war on radical Islam. Ben wondered if that means France will stop paying ransom to violent Islamist groups for hostages.

In its coverage of the Paris attacks this week, the New York Times quoted an anonymous source in al Qaeda in the Arabian Peninsula. In a letter to the paper, FBI Director James Comey criticized the decision to allow a representative of a terrorist group to clarify its role in the Paris attacks, calling it “mystifying and disgusting.” In response to criticism of Director Comey’s comments, Jack defended the Director’s actions, maintaining that the press is not immune from criticism, even if the critic is the government.

Bobby brought us the news that the FBI stymied a terrorist plot planned for the Capitol, and noted that the plot shows the danger of homegrown terrorists conducting attacks even without direction from a foreign terrorist group.

This week’s Foreign Policy Essay came from Oriana Skylar Mastro, who argued that concerns over the growth of the Chinese military are overblown; while the Chinese military is modernizing and becoming more powerful, it is likely to become a “second-tier” power with limited ability to exert force beyond its own region.

Part of China’s growing power has been asserted through its claims in the South China Sea, which led the Philippines to submit its own conflicting claims to international arbitration. Sean Mirski noted that China has refused to participate in the arbitration, yet recently released a paper essentially arguing its side in the case. The paper challenges the legitimacy of the process without clarifying the nature of China’s claims in the South China Sea.

Wells tipped us off about a new congressional effort to block transfers of Guantanamo detainees, sharing coverage of the story along with the text of the bill in question, introduced by Senator Kelly Ayotte (R-NH). Later, Wells shared the news that five more detainees had been transferred out of the facility. John gave President Barack Obama some advice on how to address the Guantanamo issue in next week’s State of the Union address. Rather than calling the issue a moral one and thus implicitly insulting Republicans, John advised framing it as a national security necessity.

Cody posted the White House’s summary of President Obama’s new cybersecurity legislative proposals, which he will announce in the upcoming State of the Union address. Paul Rosenzweig evaluated the proposals relating to information sharing and concluded that, while these proposals will certainly create a large public debate, they will be of minor significance in maintaining and increasing cybersecurity.

On Friday, President Obama met with UK Prime Minister David Cameron. The two leaders held a joint press conference and were asked about both cybersecurity and the balance between privacy and public safety. Cody shared the video and a lengthy quotation from the President on back-doors in encryption.

Paul showed us a nifty feature that the organization managing the .fr domain has added to its servers: an embedded “Je suis Charlie.” While admitting the feature is “pretty cool,” Paul pointed out that it also shows the privileged position those who manage the naming functionality of the internet have to (potentially) push their own views.

Paul discussed what the CENTCOM Twitter hack actually means, noting that it actually doesn’t mean much of anything, really.

Bruce Schneier wrote about the possibility for greater openness and accountability in governance---specifically in surveillance decisions---that new technologies enable, should we update our government to reflect these advancements. In particular, Bruce discussed the possibility of prior judicial approval for all Presidential surveillance decisions. Ben responded by walking through a scenario in which every surveillance decision is, indeed, subject to judicial approval. The increased number of nodes in this decision-making process, Ben posits, might in fact limit, not increase, the chief executive’s accountability.

Wells shared coverage of a government study that found no viable software-based alternative to bulk collection, along with the ACLU’s response to the study’s findings.

Ben shared his thoughts on why international concern for the norms of armed conflict has grown. The current crisis in the law of armed conflict, Ben argues, has arisen because it is states, and not the increasingly-brutal non-state groups that attack them, that are being held to higher and higher humanitarian standards.

Alex Whiting informed us that the International Criminal Court has opened a preliminary investigation into possible war crimes in Palestinian territory. But, he continued, this development is really a non-event, a foregone conclusion indicating nothing about the eventual outcome of the investigation.

Earlier this month, the US gained custody of a commander in the Lord’s Resistance Army who is wanted by the International Criminal Court. Paul explained why no one is really sure what should be done with the prisoner, and linked to a Washington Post article discussing the same.

Wells brought us new that a CIA review board has investigated and found that the CIA did nothing wrong in the CIA-Senate spying kerfuffle from last year, along with some articles on the topic.

In this week’s Lawfare Podcast, Jack and Ben discussed the attribution problem as it pertains to the Sony hack, focusing on the tricky balance between revealing enough information to satisfy the public while not aiding cyber attackers.

An interview with Juan Zarate headlined this week’s Steptoe Cyberlaw Podcast. The interview centered around US sanctions on North Korea in response for the Sony attacks.

In other podcast news, Ben shared the second episode of the Rational Security podcast, which featured Brookings scholar Jeremy Shapiro discussing returning foreign fighters. The gang also covered the international “Terrorist Attack Condemnation” fetish and the new vocabulary of cybersecurity.

Earlier in the week, Jeremy Shapiro released a new paper on returning foreign fighters written with fellow Brookings scholar (and Lawfare’s Foreign Policy Editor) Daniel Byman. Ben shared the paper, as well as audio from Jeremy and Daniel’s Brookings event on the same topic.

And Paul gave us an update on Lawfare’s Bitcoin, whose value has tanked since we bought it in December.

And that was the week that was.