The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, February 21, 2015, 9:55 AM

President Obama discussed encryption in an interview he gave last week as part of the White House’s summit on cybersecurity and consumer protection. Susan Landau praised the President’s comments and described how greater government access to encrypted systems---through a built-in “back door”---leaves such systems vulnerable; the flip side, she argued, is that closing this back door limits the government's ability to ferret out and foil criminal and terrorist plots. Herb Lin echoed Susan’s praise and made a couple of further points, including that human error may provide just the back door that law enforcement wants. If a consumer forgets or loses her encryption key, she will want the vendor to offer key recovery capabilities. If vendors offer this service, Herb noted, law enforcement will have access to those capabilities, too.

In the same interview, the President remarked that the scrutiny to which European governments subject American technology companies, ostensibly over privacy concerns, often helps European tech companies compete with their more developed American counterparts. Carrie Cordero applauded the remarks and described how Europe used the Snowden revelations to support European industry while hamstringing American companies under the guise of concerns over government surveillance.

The Office of the Director of National Intelligence recently compiled some of the guidelines that regulate government surveillance. Wells posted those guidelines, which cover how various agencies collect, retain, and disseminate information relating to U.S. persons pursuant to Executive Order 12,333.

Details of another kind of government surveillance also came to light this week. Bruce Schneier told us about the Equation Group---probably the NSA---and its ability to embed spyware deep inside targeted computers. He went on to describe the implications of this revelation for cybersecurity. Herb added some background on why the group’s techniques---which aren’t new---are still viable and also wondered whether this program is part of the NSA’s preemptive capabilities.

Paul Rosenzweig assessed the effectiveness of the White House’s new information sharing executive order, noting that it will be somewhat helpful but limited by its inability to surmount legal barriers to information sharing by the private sector. Paul also tipped us off to several other stories on cyberspace in his “Bits and Bytes” feature.

The Obama administration’s draft AUMF for ISIS has not fared well in the press. Ben collected some pointed critiques of the proposal, noting that some people argue that it’s too broad, others argue that it’s too narrow, and some even argue that it’s both. But, Jack explained, much of the commentary swirling around the proposal misunderstands what the draft’s language actually says, and so he set out to correct a few of these major misconceptions. Even without these misconceptions, however, much of the draft is far from clear, so Jack, Steve Vladeck, and Ryan Goodman wrote up six questions that Congress should ask Administration witnesses in upcoming hearings on the AUMF.

The ongoing debate over what congressional limits on presidential power should be included in the AUMF are part of a broader discussion on the proper role of Congress in foreign affairs. Wells linked to an article on the topic by Daniel Silverberg, a lawyer working in the House of Representatives on issues relating to national security and foreign affairs.

Wells also posted to a decision by the CMCR that voided the first conviction by a Guantanamo military commission. In 2007, Australian David Hicks, who was picked up in 2001 after training with al Qaeda, pleaded guilty to providing material support to terrorism; the CMCR voided his conviction and sentence on the grounds that, in Al Bahlul v. United States, the D.C. Circuit decided that material support for terrorism is not a viable charge in military commissions for pre-2006 conduct.

While this leaves only a few successful military commission convictions standing, the commissions continue to hear cases. One of these cases, that of the accused 9/11 conspirators, moved forward last Thursday. Matt Danzer described the proceedings, which centered around a series of motions on behalf of one defendant, Mustafa Al-Hawsawi.

As the last day of funding for the Department of Homeland Security approaches with no deal in sight, Paul noted that a DHS shutdown isn’t really a shutdown at all, as around 85 percent of DHS employees are “essential” and the President can direct them to keep working. But while the conflict over DHS funding remains deadlocked, the fight over the underlying issue in the conflict---the President’s Executive action on immigration---evolved, with a federal judge blocking the President’s immigration plan. Peter Margulies discussed how the opinion will shape the case going forward and argued that the judge’s opinion rightly censured the Obama administration for allowing “rhetoric to supplant reality.”

Earlier this week, in response to some remarks by Eric Holder on the administration’s prosecutions of leakers, New York Times reporter James Risen unleashed a vitriolic Twitter rant against Holder and the Obama administration, calling it “the greatest enemy of press freedom in a generation.” Ben shared both Holder’s remarks and Risen’s lengthy tirade, and then evaluated some of Risen’s claims. In particular, Ben noted that the "reporter’s privilege" that Risen refers to is actually nonexistent according to current Supreme Court case law.

Jack tacked a few further points onto Ben’s response, noting, among other things, that Holder has actually extended some press protections and even declined to force Risen's testimony, although it was well within his authority to do so. The whole rant, Jack mused, indicates just how hostile journalists are to the accountability they demand of all other institutions. After the Times’s Public Editor Margaret Sullivan voiced support for Risen’s polemic, Jack and Ben noted that, while they agree with Sullivan’s assertion that the Times should support “truth-telling and challenging the powerful,” Risen’s rant doesn’t deserve such lofty honorifics.

This week, the White House held a summit on countering violent extremism. In conjunction with the summit, Brookings scholar William McCants published a special edition of the Foreign Policy Essay, which offered some guidance on what anti-radicalization programs should and shouldn’t do. Specifically, he argued that initiatives should be narrowly focused, as broad programs may alienate American Muslims.

The trial of an American who did become radicalized, alleged Boston bomber Dzhokhar Tsarnaev, has been repeatedly held up by fears that a Bostonian jury will not be impartial. On Thursday morning, three judges from the First Circuit Court heard arguments about whether the trial should be moved out of Boston to ensure impartiality. Andy Wang recounted the day’s proceedings for us.

Yishai Schwartz and Jennifer Williams updated us on developments in the Middle East and North Africa in a new installment of “The Middle East Ticker.”

In this week’s Foreign Policy Essay, Elbridge Colby argued that as China begins to match the U.S. military’s regional capabilities, nuclear weapons will take on newfound salience for both countries.

This week’s Lawfare Podcast (Episode #110) featured Shane Harris and Ben making serious jokes on surveillance and privacy at Washington and Lee School of Law’s cyber-surveillance symposium.

Ben also appeared on this week’s episode of the Steptoe Cyberlaw Podcast (Episode #54) to discuss his new book with Gabriella Blum, The Future of Violence.

And in a kind of podcast hat trick, Ben also linked us to some fun new podcasts---including the latest episode of Rational Security---from Spaghetti on the Wall Productions, the production company he started with Shane Harris and Jennifer Howell.

And that was the week that was.