The Week That Was

The Week That Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, February 14, 2015, 9:55 AM

After months of dithering, President Barack Obama sent a draft Authorization for Use of Military Force for ISIS to Congress on Wednesday. As it became clearer that the administration would formally request an AUMF, Ben wondered if President Obama would go back on an earlier promise to repeal the 2001 AUMF. When the text of the proposal came out (which Cody posted), Ben gave us his notes on it and remarked that the President had indeed gone back on his promise. The initial responses from politicians in both parties were a bit more pointed; Zoe Bedell posted a collection of their statements about the draft.

Jack analyzed both the legal and political implications of the AUMF. Legally, Jack noted that the proposal includes limits on presidential power that are completely meaningless without sunsetting the 2001 AUMF. In fact, without a clause to sunset the 2001 AUMF,  the draft actually expands presidential power by broadening the range of groups that fall under it. Politically, Jack wondered why the administration submitted an AUMF that was certain to face a tough slog to approval. Ben speculated that perhaps the administration’s strategy is to send a draft so devoid of substantive limitations that it is certain to get amended, but only in ways the administration can live with. If the draft appeared with these acceptable limitations already included, Ben reasoned, Congress might reflexively demand more limitations.

Jack later provided more thoughts on the document and noted that, to at least one Defense Department official, the debate over the AUMF is more political showmanship than substantive debate over the military’s operations. The AUMF does include some language meant to define how the military must engage in the conflict, however, specifically by prohibiting “enduring offensive” ground operations. Bobby noted that an example of what working within that prohibition might look like is the current wave of covert operations in Afghanistan.

Of course, the United States is not the only country attacking ISIS; recently, Jordan has dramatically increased its military operations against the group. Ashley Deeks asked what legal authority Jordan is using in conducting attacks and wondered how the answer might change what Jordan could legally do in the conflict.

Ben linked us to Jane Harman and Jack’s op-ed in the Washington Post on closing Guantanamo and added that, just maybe, closing Guantanamo might force us to decide what to do with future long-term detainees. Ramzi Kassem provided his take on how closing Guantanamo should not proceed: by importing Guantanamo detainees to the United States. Addressing Steve Vladeck’s earlier argument that bringing detainees to U.S. soil might legally benefit them, Ramzi argued that even if that is the case---which he doubts---it would nonetheless come at the cost of years of continued detention for the detainees. On Thursday, the debate over closing the facility moved from Lawfare to the House Armed Services Committee; Cody linked us to video of the hearing on Guantanamo closure.

Proceedings in the case of some of those Guantanamo detainees---the 9/11 co-defendants---began again this week. Wells posted the opening statement by the chief prosecutor, Brigadier General Mark Martins, and then kept us updated on Monday’s proceedings (Session 1 and Session 2), in which it emerged that one of the defendants recognized a defense team translator from his time in a CIA black site. The development led the court to recess until Wednesday, when, as Yishai Schwartz recounted, discussion centered on problems arising from the translator’s work history and the FBI’s earlier questioning of a civilian defense lawyer.

On Tuesday, the defense for another Guantanamo detainee---Abd al-Rahim al-Nashiri---argued his case before the D.C. Circuit. Steve summarized the oral argument and explained that, although the Court was unlikely to reach the merits of the case, the reasons the judges cite for not being able to do so will have serious consequences for the future of military commissions.

Jennifer Williams and Yishai launched “The Middle East Ticker,” a recurring feature that will round up recent stories on the Middle East and North Africa of interest to Lawfare readers. Yishai also tried to determine whether the Palestinians’ move to allow the International Criminal Court to open an examination into possible Israeli crimes legally triggers a cutoff of Palestinian aid. Yishai determined that it probably doesn’t, but that, if the examination goes forward, it will become increasingly difficult to avoid that cutoff.

Herb Lin brought us the news that the administration is creating a new agency to coordinate information during a cyber crisis. Cody then showed us video footage of Assistant to the President for Homeland Security and Counterterrorism Lisa Monaco’s address announcing the creation of this agency, which will be named the Cyber Threat Intelligence Integration Center. Presumably, the Center will be helpful during attacks like the recent Anthem hack, which Herb told us about. He went on to muse that the hack showed us, yet again, that Social Security Numbers are actually extremely vulnerable, inadequate forms of identification.

Senator Ed Markey (D-MA) recently joined the conversation on the cybersecurity of things with a report discussing the insecurity of increasingly technologically advanced automobiles. Paul Rosenzweig summarized the report and argued that some of the proposals mentioned in the report would suppress innovation more than increase security.

Hugo Rosemont presented a defense of British Prime Minister David Cameron’s recent remarks on the need for government access to digital communications, arguing that many criticisms of the Prime Minister’s statements are overly harsh and focus too much on their technological aspects while discounting their implications for governance. President Obama discussed some of the same issues in the White House's cybersecurity summit on Friday, and Herb made a couple points on the content of the summit's discussion.

Alex Ely explored some of the key points put forth in the Office of the Director of National Intelligence’s recent report on the implementation of the President’s PPD-28. Lauren Bateman added her own summary, breaking down the report by its information regarding the NSA, CIA, and FBI.

Later in the week, David Medine, head of the Privacy and Civil Liberties Oversight Board, argued that telephone metadata collection authorized under Section 215 should, and can, be ended.

Paul informed us that, with DARPA’s new search engine Memex, law enforcement and intelligence agencies can now search the Dark Web.

Ben linked to a new poll that found almost two thirds of investigative journalists think their communications have been monitored by the government to some extent. While admitting that the government has probably monitored some journalists’ communications, Ben posited that the high number is probably more a function of journalists’ high opinion of their own importance than actual government behavior.

Yishai used the ongoing conflict over jury selection in the Boston bombing trial as a starting point to explore the historical tension between a defendant’s right to a fair trial by jury and a community’s right to serve justice to those who harm it.

Jack informed us of the newest edition of the Harvard National Security Journal.

Mira Rapp-Hooper summarized the new installation of the Asia Maritime Transparency Initiative.

In this week’s Foreign Policy Essay, Joshua Rovner argued that U.S. foreign policy is rarely as much of a disaster as pundits claim, and that failing to recognize its successes can prevent us from learning from them.

This week’s Lawfare Podcast (Episode #109) featured Office of the Director of National Intelligence General Counsel Robert Litt’s address at Brookings, in which he outlined the progress the administration has made in implementing the reforms put forth in the President’s PPD-28.

Stewart Baker posted this week’s Steptoe Cyberlaw Podcast (Episode #53), which includes an interview with Alex Klimburg, from the Hague Institute for Strategic Studies and the Harvard Kennedy School.

Ben, Tamara Cofman Wittes, and Shane Harris discussed the death of Kayla Mueller and the new AUMF on the Rational Security podcast (Episode #6)

And that was the week that was.