The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, January 24, 2015, 10:00 AM

During President Obama's sixth State of the Union address, Ben shared relevant passages from the text of the speech. After the address, Carrie Cordero pointed out the incongruence between the president’s statement that “The shadow of crisis has passed” and the myriad current global crises the country currently faces. Carrie went on to argue that the speech focused too much on process---getting an AUMF passed and reforming surveillance protocols---and not enough on results. Jack noted that President Obama’s calls for a new AUMF, reiterated (again) in the State of the Union address, hardly match his actual actions on the matter. Jack posited that the administration’s foot-dragging on the AUMF question reveals a greater concern for the president’s legacy than for effectively prosecuting the war. After President Barack Obama advocated the closure of Guantanamo in his State of the Union address, Ben decried the current state of the Guantanamo debate. Those against closing the facility rely on a mischaracterization of those actually detained in GITMO and their risk of recidivism, while those who argue for closure ignore the fact that our current detention will continue even if Guantanamo is closed and act as if Guantanamo is a bigger recruitment tool for terrorists than it really is.

Herb Lin drew some lessons from the Sony hack, ranging from the depth of the attribution problem to the avenues of proactive cyber action available to victims of a hack. In response to a New York Times piece that revealed that NSA had drilled into the Chinese networks that serviced North Korea (creating a covert cyber vantage point that provided some of the evidence of North Korea’s role in the Sony hack), Jack discussed how this leak indicates the relatively free hand that journalists have today in publishing classified material. Bruce Schneier pointed us to another Snowden document dump that details the NSA’s offensive capabilities in cyberspace.

In this week’s Foreign Policy Essay, Brookings scholar Jeremy Shapiro addressed France’s response to the Charlie Hebdo attacks, arguing that a few radical extremists are not the largest threat facing French society. The bigger threat, Jeremy explains, lies in overreactions to the threat of these radical extremists, which risk further alienating the target population while curbing the liberties of all citizens. Yishai Schwartz covered the blitz of arrests in France that followed the attacks, pointing out that, contra popular belief, the civil liberties enjoyed by the French--especially in relation to detention, judicial independence, and free speech--are actually narrower in some regards than those enjoyed by US citizens.

David Cameron has responded to the Paris attacks by pushing for legislation banning encrypted communications. Susan Landau explained that this will actually make the country more vulnerable to attack. Paul Rosenzweig wondered if the Paris attacks might push the EU to adopt a Passenger Name Records system similar to the American one that the EU has repeatedly criticized.

Ben and Andy Wang took the BBC---and other news media---to task on two counts. First, many press outlets have ignored the massacre of thousands of Nigerians by Boko Haram in Baga; second, whatever coverage this massacre does get has at times been superseded by coverage of GITMO that is fundamentally flawed.

Ben also shared some thoughts on the release of Ali Saleh Al-Marri from Guantanamo. The release of Al-Marri illustrates that any short-term gains in intelligence gleaned from interrogations held in military custody may come at the cost of long-term capacity to disrupt serious threats.

Wells informed us that the Obama administration has, in light of the chaos in Yemen, reinstituted an informal ban on transfers of GTMO detainees to Yemen. This ban, as well as Senator Kelly Ayotte’s (R-NH) proposed legislation banning the same thing, is somewhat redundant given that just one GTMO detainee was transferred there since 2009.

Recently, new Chairman of the Senate Select Committee on Intelligence Senator Richard Burr (R-NC) sent a letter to the Obama administration asking it to return all copies of the SSCI’s full report on the CIA’s detention and interrogation practices. Wells put us in the mind of an executive branch lawyer debating whether or not to heed the request.

Yishai discussed Israeli Prime Minister Benjamin Netanyahu’s decision to speak before Congress without consulting the White House, and noted that, while the speech may benefit Prime Minister Netanyahu in his upcoming election, the decision makes the Israeli issue a more partisan one in the US, thus hurting Israel in the long-term.

Andy walked us through the National Research Council’s recent report on alternatives to bulk collection by the intelligence community. Herb extracted several key points from the report, including that the distinction between bulk and targeted collection is far blurrier than the terms imply.

Paul gave us some of the cyber-news stories that we missed last week, one of which involves some frightful things called “Zombie Cookies.”

Bobby brought us the news that two Yemeni members of Al Qaeda have been captured in Saudi Arabia and transferred to New York, where they will face trial. He also mentioned the nature of the evidence involved in the case, which appears to be based on human, rather than signals, intelligence.

In a new installment of Lawfares Throwback Thursday series, Cody and I explored the history of the enclaves on the border between India and Bangladesh and the problems they pose for security, economic development, and diplomacy.

Ben shared news that Mexican authorities have found a drone that crashed en route to the US border while carry six pounds of methamphetamine.

Stephanie Leutert explained some of the intricacies of US immigration policy that complicate the answers to such seemingly simple questions as “How many people do we actually deport?”

This week’s Lawfare Podcast (Episode #106) featured a conversation with Daniel Reisner, former head of the International Law Branch of the Israeli Defense Forces. Daniel, Matt Waxman, and Ben’s discussion touched on the law of targeted killings, the role of morality in giving operational law advice, and much more.

The third episode of the Rational Security podcast resisted the urge to rehash the State of the Union and instead focused on the UAE,  among other non-State of the Union things.

In this week’s Steptoe Cyberlaw Podcast, Stewart Baker interviewed David Sanger, the reporter who broke the Stuxnet story, about the Sony hack, North Korea’s cyber capabilities, and the NSA’s offensive cyber operations.

And that was the week that was.