The Week That Was

The Week That Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, February 28, 2015, 10:00 AM

Lawfare’s own Bobby and Ben trekked to the Hill this Thursday, to testify alongside Gen. Jack Keane before the House Armed Services Committee on the Obama administration’s AUMF. Ben testified that, while many of the current criticisms of the draft AUMF are incorrect, the document is nonetheless fundamentally flawed, especially in the breadth of the power it grants the President. Many of the proposal’s shortcomings, Ben argued, are addressed in the draft AUMF Ben wrote with Bobby, Jack, and Matt Waxman. Bobby echoed Ben’s concerns over the lack of meaningful constraints imposed by the administration’s draft. Moreover, he noted the lack of precedent for limiting the possibility of ground operations in a conflict in which the stated goal is to “destroy” an enemy. He also cautioned against creating unnecessary legal confusion for commanders and asserted the desirability of a sunset clause in the AUMF. Cody posted video of the hearing, which Ben warmed up for by hosting a live webcast to discuss the proposed AUMF with fellow Brookings scholar Michael O’Hanlon.

Steve Vladeck wrote that he finds himself in fairly close agreement with Ben as regards an ISIS AUMF. Steve laid out his concerns with the Lawfare draft for the bill, which center on its less-restrictive definition of “associated forces” and on its imperfect language incorporating international law as a geographic limitation. If these two issues are unsatisfactorily resolved, Steve worries, the Lawfare draft might actually expand the authorities granted in the 2001 AUMF.

One of those granted authorities is now being challenged in a Guantanamo habeas petition. Wells posted the motion related to that suit, filed Thursday night on behalf of Mukhtar Yahia Naji al Warafi, who is accused of being part of the Taliban during the 2001 U.S. invasion of Afghanistan. In the brief, his attorneys argue that the 2001 AUMF allows the U.S. government to detain a person captured during a conflict only so long as that conflict continues. Given that President Obama has repeatedly proclaimed the end of the war in Afghanistan, and given that the U.S. combat mission there has officially ended, the defense argues that al Warafi can no longer be legally detained.

Pre-trial proceedings in the Al Nashiri military commission continued this week. Cody posted the opening statement by Chief Prosecutor Brig. Gen. Mark Martins, and Matt Danzer provided two-day summaries (Monday-Tuesday and Wednesday-Thursday) of the week’s happenings. Proceedings centered on the order issued by Deputy Secretary of Defense Robert Work in January, requiring military commission judges to live on base for the duration of their cases. The defense contends that the order constitutes unlawful influence on the trial by the Deputy Secretary and prevents the defendant from receiving a fair trial.

The defense in the 9/11 trial earlier raised the same issue, and on Wednesday, Wells broke the news that Chief Judge Col. James Pohl, currently presiding in that trial, found that Deputy Secretary Work’s order constituted unlawful influence. Consequently, Judge Pohl issued an abatement order (which Cody posted) halting the 9/11 trial pending the withdrawal of the order. The Defense Department responded promptly by withdrawing the order on Friday, Wells informed us.

Continuing the comparison of U.S. and European surveillance laws that Carrie Cordero began last week, Tim Edgar argued that we should not simply accept that the United States doesn’t value privacy. In fact, he asserted, the privacy protections built into U.S. surveillance law are superior to those of European surveillance law in terms of surveillance oversight, surveillance of foreigners, and transparency. Carrie followed Tim’s piece with an analysis of the more permissive surveillance laws in place in several countries and compared them to the oversight process implemented under FISA.

Tim also noted the effect for U.S. surveillance of a recently decided Supreme Court case that turned on whether a fish constitutes a “tangible object.” By limiting the meaning of “tangible objects” to things that could conceivably be meant in the law’s context, the Court may have dealt a blow to the government’s authority to conduct bulk collection of telephone records. Because such collection depends on Section 215’s amendment of FISA to allow the compelled production of “any tangible things,” and because, as Tim sees it, nationwide databases of phone records aren’t conceivably indicated as a “tangible thing” in the context of the law, bulk collection’s legal standing just got substantially weakened.

This week’s Lawfare podcast (Episode #111) featured Ben’s NSA Constitution Day speech. In the speech, he tried to answer why many people find it so hard to trust the intelligence community, and posited that this difficulty has something to do with the fact that intelligence agencies operate outside of the normal neutral principles on which democracies usually function. Ashley Deeks and Ben later expanded on this thesis and suggested that, while domestic law does not subject the intelligence community to such neutral principles, perhaps the recognition of neutral principles in international law could fill this gap and thus allow greater public trust in the intelligence community.

Paul Rosenzweig discussed the fundamental tension between transparency and secrecy in national security reporting and took the Intercept to task for its recent leak of a TSA vulnerability. The leak, Paul argued, represents the Intercept’s basically nihilistic brand of transparency, which is not so much about leaking to check government abuse but rather about leaking to prove one’s importance. Jane Chong also discussed the intricacies of journalistic discretion, and how we often honor journalists with a level of trust that is sometimes belied by their complicated individual agendas.

Jane used as a jumping-off point Citizenfour, the documentary following the story of the Intercept’s most famous leak that won the Oscar for Best Documentary Feature last Sunday. Ben and Cody also discussed Glenn Greenwald’s Oscar, wondering if the award might have been awarded not to honor the film but, as a leaked photo may or may not indicate, to let the NSA get just a little closer to the hero himself.

Herb noted that reframing the encryption debate as a technical question rather than a values question might provide a way forward. Specifically, Herb proposed that the two sides debate the likely time scale on which a NOBUS mechanism could remain secure.

In preparation for a Senate Commerce committee hearing on the proposed relinquishment of U.S. control over the internet domain name system (which Wells told us about), Jack summarized an essay he wrote on the matter for Hoover’s The Briefing series. In the essay, he argues that concerns that authoritarian states may seize control of the naming system are overblown, noting that the only example of ICANN caving to a state’s interests was when it reversed course on approving the .xxx domain name under intense U.S. pressure. Nonetheless, he maintains that there remain important questions over how best to cede control over the naming function.

This week, a New York court found the Palestinian Authority and the Palestine Liberation Organization liable for the death and injury of several Americans from 2002 to 2004, a judgment that carries an initial penalty of $218.5 million. Yishai Schwartz explored how the decision indicates the shift toward greater acceptance of “lawfare” among pro-Israeli groups, and how that changes the legal battlefield of the Israeli-Palestinian conflict. John Bellinger showed us a more concrete battlefield in the same conflict: one of the tunnels Hamas allegedly built from Gaza into Israel.

Mira Rapp-Hooper summarized the newest edition of the Asia Maritime Transparency Initiative, which details Chinese land reclamation efforts in the South China Sea and how these efforts will impact the Law of the Sea regime. And, in other China news, Bruce Riedel reviewed The China-Pakistan Axis: Asia’s New Geopolitics by Andrew Small. Bruce calls the book, which traces the formation of the Chinese-Pakistani nexus from its 1962 roots to its current iteration, a “a concise and informative study of one of the world’s most important state-to-state relationships.”

In this week’s Foreign Policy Essay, Carol Saivetz walked us through the drivers of Russia’s Ukraine policy -- including Russian President Vladimir Putin’s fear of successful popular uprisings and his desire to become at least a regional hegemon -- and how these drivers have produced today’s Ukraine scenario.

Jack brought us some of the highlights in the new “Worldwide Threat Assessment of the US Intelligence Community” report issued by the Office of the Director of National Intelligence. One of the largest threat’s Jack touches on is “cyber,” which the report sees as an expanding threat, for the frequency, type, target, and source of cyber attacks are rapidly increasing. Paul assessed one proposal to help address this threat, cyber arms control, and found it to be an implausible idea because we don’t yet know what, exactly, cyber weapons are.

Stewart Baker posted Episode #55 of the Steptoe Cyberlaw Podcast, which featured an interview with Nuala O’Connor, CEO of the Center for Democracy and Technology.

Last week, the White House hosted a summit on countering violent extremism. Sebastian compiled video of the event’s various speakers and panels.

Bobby informed us of a call for participants for the upcoming 8th Annual National Security Law Workshop, which he is co-hosting May 14th and 15th in Houston.

And that was the week that was.