The Week That Was

The Week That Was: All of Lawfare In One Post

By Nick Basciano
Saturday, December 14, 2013, 10:00 AM

Let's start with Guantanamo: This year's NDAA has taken its final form, and Raffaela posted an initial summary of the provisions germane to detention. Ben linked us to the full text of the bill once it came online and then explained why we should view the Guantanamo provisions as a "big win for the Obama administration—and for common sense." Matt W. discussed some nuances on the issue of forced repatriation, to which the New York Times had objected, and argued that it is a potentially necessary step towards closing the detention facility. Habeas lawyer David Remes, however, wrote in to disagree with Matt's assertion that forced repatriations are "virtually inevitable." Over at the Times, Linda Greenhouse argued that Guantanamo litigation acts as a mirror, reflecting the health of our institutions and ourselves. Ben enjoyed the article but explained why ongoing detention decisions still have very real policy implications. Oral arguments in Hatim v. Obama, the "Counsel Access Case," were held Monday, and Raffaela had the summary. Wells posted David Remes' vivid description of the searches that are prompting the appeal and also gave us a brief schedule for the 9/11 trial hearings in the week ahead.

Then there's surveillance: Tim Edgar provided the week's must-read critique in his dismantling of Ryan Lizza's lengthy account of surveillance law. While the Snowden disclosures have prompted debates mainly over security and privacy, Daniel Byman posted an essay by Cheng Li and Ryan McElveen that looks at the leaks' economic impacts. Jack thought their work helpful in its treatment of American business interests in China, but he had some "quibbles" over their broader conclusions. Jane highlighted reports in the New York Times revealing U.S. intelligence efforts to monitor hostile communications in massively multiplayer online role-playing games (MMORPG). Jack had some preliminary comments on the report produced by the President's Review Group on Intelligence and Communication Technology, and Raffaela linked us to video of the Senate Judiciary Committee's hearing on surveillance oversight.

In other areas, the Solicitor General has filed an amicus brief in Samantar v. Yousuf, a case in which the Fourth Circuit decided that the Foreign Sovereign Immunities Act does not extend to foreign government officials. Ingrid examined why the SG's argument on the constitutional power of the executive branch is both "expansive and unconvincing," and John gave some reasons why the brief missed the mark.

Matt W. discussed the problems with local and state approaches to countering terrorism, as recently discussed in the Brennan Center for Justice's report.

Ten years on, Paul looks back on the "National Strategy to Secure Cyberspace" and laments the lack of an update. Paul also pointed out articles by Stewart Baker and Fred Cate, both of whom take a close look at the privacy provisions contained in the draft of the NIST Cybersecurity Framework.

As Ukraine protests continue, Ken drew attention to articles by Chris Borgen, who elucidates the politics of the oft-overlooked Russian "near abroad."

Ben expressed concern over the NRO’s obsession with attaching wildly dramatic images and catchphrases to its hardware.

Wells posted a call for papers from Stanford Journal of International Law.

Chris Inglis, Deputy Director NSA, is retiring. Ben tipped us off to Shane Harris, who had the story.

And on the lighter side, Ben was amused by Stewart Baker's "The Coveted Golden Privy Award" honoring “the stupidest, the most hypocritical, and the most power-serving uses of privacy law of the year.” Unsurprisingly, Ben is campaigning for a certain someone to take home the gold.

No content? No problem. Raffaela posted a sign-up for Lawfare's email subscriptions---a great way to stay current with the site right from your inbox.

Lawfare is on its way to becoming a 501(c)(3) institution, and Ben took the moment to ask for our readers' continued monetary support.

And of course, there was Lawfare Podcast Episode #51: Colombia's Minister of National Defense Speaks at Brookings.

Stay tuned Monday morning and every morning this coming week for the Lawfare Podcast Episodes #52-#56: [REDACTED]. They will be special. 


And that was the week that was.