The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, March 7, 2015, 9:56 AM

The Office of the Director of National Intelligence released a report on recidivism among former Guantanamo detainees this week. The report details that, while nine additional former detainees returned to hostilities since the last report in September 2014, the percentage of detainees released since January 2009 that have reengaged actually decreased by 1.6 percent. Cody posted the report.

The DNI issued another report recently as well: the department’s 2015 annual threat assessment. Amy Zegart added to Jack’s earlier take on the DNI’s report, noting the assessment’s continuity in threat ranking with last year’s report, the meteoric rise of the cyber threat---from meriting no mentions in 2007 to earning the top threat ranking in 2012---and the quiet ascendance of the “Space and Counterspace” threat. In addition, the leader of the department that conducted the assessment, Director of National Intelligence James Clapper, addressed the issues raised in the report at a CFR event Monday. Cody posted video of the event.

The magnitude of the cyber threat became even clearer this week. Bruce Schneier described the mechanism behind a recently-publicized cyberattack method that can break the encryption of many websites. The attacks--called “FREAK”, or “Factoring Attack on RSA-EXPORT Keys”--exploit a vulnerability that the U.S. government created by restricting the export of more secure encryption systems. While companies are rushing forward with fixes, Bruce explains that the whole issue brings into greater relief the problem with government “back doors” and the like: we can’t create a third-party access system that only lets the good guys in.

Bruce also recently published a book, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World. Jack described the book’s broad contours, which include a primer on data collection, an argument for why that data collection matters, and a series of policy proposals meant to limit the use and collection of data.

On the topic of collecting data, the FISC recently approved the government’s request to extend its Section 215 collection authority through June 1, 2015, when, unless Congress acts, Section 215 will expire. Ben posted the White House and joint Justice Department-DNI statements on the matter.

Jane Chong countered Ben’s previous argument that Americans struggle to trust the intelligence community because it doesn’t operate according to the neutral principles that people expect in a democratic government. Americans’ distrust, Jane posits, actually comes from a particular American bias. Americans generally believe that they are morally exceptional. Consequently, they don’t mind the intelligence community’s non-neutral principles when it spies on, say, Russia or China. But, when the intelligence community turns its eyes inward and subjects Americans to that same non-neutral surveillance, Americans feel a line has been crossed. Jane summarizes the point succinctly: “bias helps power our belief in the need for NSA, and the flip side of that bias is our indignation at the prospect of being the target of NSA’s special powers.”

In the first installment of Lawfare’s new “Intelligence Studies” essay series (which Bobby introduced), Stephen Slick provided some insight into how the lessons learned in the development of the National Counterterrorism Center can help shape the new Cyber Threat Intelligence Integration Center.

Herb Lin testified about some of the threats that the new CTIIC is meant to address before the House Energy and Commerce Committee; Cody linked to Herb’s prepared testimony.

Paul Rosenzweig joined Timothy Edgar and Carrie Cordero’s recent comparison of U.S. and E.U. privacy protections. Bringing up a case recently argued before the Supreme Court, in which the Court appears likely to rule that law enforcement can check hotel records without a warrant or judicial authorization, Paul mused that, while U.S. privacy protections are certainly no worse than those in Europe, perhaps they are no better, either.

Paul also informed us of two email privacy bills currently wending their way through Congress. The first, the Leahy-Lee bill, would update the Electronic Communications Privacy Act to require a warrant to access the content of stored communications. The second, the LEADS Act, would do the same thing, as well as also require a warrant to access the content of electronic communications that are stored overseas.

Staying on the topic of email privacy, Paul shared some questions about cybersecurity raised by the recent revelations of Hillary Clinton’s use of private email while at the State Department. Mrs. Clinton’s emails also came up in this week’s Rational Security podcast, along with Susan Rice’s speech to AIPAC and recent Guantanamo litigation. Ben posted the new episode, along with the newest Chess Clock Debate episode, which features Brookings Fellow Natan Sachs debating the Israel Project’s David Hazony over who is to blame for the recent decline in relations between the United States and Israel.

Last Friday, the First Circuit Court ruled against a request for a writ of mandamus ordering the trial of accused Boston bomber Dzhokhar Tsarnaev to be moved out of Boston. Andy Wang summarized the 2-to-1 ruling. The majority, Andy writes, seems to reject the defense’s argument that Tsarnaev could not possibly receive a fair trial based on Boston’s size: in a city of five million, there is almost certainly at least one impartial jury out there. In a fierce 45-page dissent, Judge Juan Torruella rails against the majority’s decision, claiming that even the provisionally qualified jurors were tainted by bias.

The motion settled, a jury was selected and the trial began. Jody Liu covered the trial’s opening statements. The prosecution focused on describing the grisly events in question and depicting Tsarnaev as a full participant in the violence. The latter effort preempted the defense’s opening statement, which opened with an admission of the defendant’s role in the horrific acts, but painted Tsarnaev as a vulnerable teen pushed to violence by his self-radicalized brother. The prosecution then began presenting its case to the jury, which Jodie and Andy summarized. The prosecutor called several witnesses, all of whom described in emotional, gruesome detail the terrifying scene immediately after the bombing.

Ben argued that the plea deal David Petraeus reached with prosecutors this week, which essentially amounts to a slap on the wrist, is too lenient. When compared to the significant jail time served by less-important leakers, the deal creates the image of a two-tiered justice system for those who divulge classified information. Ben later posted some comments by Chris Jenks, who noted that, in his role as a general court martial convening authority, Petraeus “sent people to jail and ended careers for far less than what he did.”

Ben joined Jennifer Daskal to describe an emerging consensus among scholars and commentators regarding an ideal AUMF---a consensus that has yet to breach the halls of Congress. The main provisions of this consensus include: a contemporaneous sunset of separate authorizations to use force against ISIS and al Qaeda; a clear prohibition on the use of the 2001 AUMF to justify using force against ISIS; a definition of “associated forces” that follows recognized principles of co-belligerency; a meaningful reporting requirement; and a mandate to follow international law. Ben and Bobby discussed some of these points, and how including such provisions in an AUMF would address problems with Obama administration’s draft AUMF, in testimony before the House Armed Services Committee last week. Audio from their testimony comprised this week’s Lawfare Podcast.

General John Allen, Special Presidential Envoy for the Global Coalition to Counter ISIL, spoke on the strategic, rather than legal, future of the fight against ISIS at the Atlantic Council on Monday, and Cody posted video from the event.

Jennifer Williams and Yishai Schwartz updated us on news from the Middle East with another installment of “The Middle East Ticker.”

The Al Nashiri military commission case at Guantanamo continued this week. Matt Danzer first summarized last Friday’s proceedings, which dealt with the defense’s charge that the Pentagon’s order directing all military commission judges to live at Guantanamo for the duration of their cases constitutes unlawful influence in those cases. During Friday’s session, the Deputy Secretary of Defense rescinded the order, so the argument turned to whether or not this development made the defense’s charge moot.

Wells covered this week’s Nashiri proceedings. On Monday, despite the rescission of the Pentagon’s residency order, the presiding judge partially granted the defense’s aforementioned motion. As a result, the judge barred the Convening Authority from taking any action in the Nashiri case, and, in order to assert the court’s independence, cancelled this week’s planned evidentiary hearings and announced that April’s hearings would be shortened. After the lunch recess, the two sides sparred over whether hearsay determinations should be made piecemeal (the defense’s view) or only once all evidence has been submitted (the prosecution’s view). The day’s late afternoon session dealt with a series of procedural odds and ends.

The next morning, proceedings turned to the suppression of statements by various witnesses, which led into a discussion of who should have a copy of the Senate Select Committee on Intelligence’s “Torture Report.” The prosecution is currently reviewing the document and its discovery obligations, but the defense asked that the judge obtain a copy in order to review the prosecution’s decisions regarding exculpatory material in the document. The day’s second session comprised a bit of housekeeping. Later in the afternoon, the court took up the prosecution’s motion to reconsider a prior ruling that excluded evidence of Al Nashiri’s “wanton disregard for human life” that the prosecution plans to use to bolster its terrorism charge. After hearing arguments on the motion and some more housekeeping, the court adjourned until April.

In this week’s Foreign Policy Essay, Alexander Velez-Green described a new “killer robot,” or, rather, autonomous weapons system, deployed by South Korea along the DMZ. Taking isssue with common arguments against autonomous weapons systems, Alexander argues that these new robots are raising the cost of aggression by North Korea in the DMZ.

This week’s Steptoe Cyberlaw Podcast (Episode # 56) featured an interview with Siobhan Gorman, a former Wall Street Journal reporter who broke many of the paper’s top cybersecurity stories.

Paul brought us three new editions of his "Bits and Bytes" feature.

Ben informed us that Timothy H. Edgar, Susan Landau, and Amy Zegart are joining our Lawfare team as contributing editors.

And that was the week that was.