The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, March 28, 2015, 9:55 AM

On Wednesday, Cody shared the news that Sgt. Bowe Bergdahl has been charged with desertion and misbehavior before the enemy. The New York Times editorial board responded to the news by questioning the wisdom of prosecuting Sgt. Bergdahl, given the amount of suffering he has already experienced at the hands of the Taliban. Ben agreed that this suffering should probably preclude him from serving any jail time if convicted. But Ben also noted that Bergdahl’s desertion forced the Army to expend resources and put other soldiers in danger trying to find him, and that the Army has a compelling interest in prosecuting him to deter other soldiers from acting similarly.

The formal charges come as debate continues over whether President Obama violated the law by releasing five Taliban militants held at Guantanamo in order to secure Sgt. Bergdahl’s release. Jack gave us his take on the issue: the move probably violated three separate statutes and, if the President predicated his violation of these statutes on his Article II power, then he has veered into a legal gray area with little precedent as a guide. Jack also posted the Department of Defense’s “very strained statutory interpretation arguments” in response to a GAO memo that identified the same potential violation of those three statutes.

This week, Lawfare published four excerpts from ISIS: The State of Terror, a new book by Jessica Stern and J.M. Berger. In the first excerpt, the authors discussed the success of the ISIS online propaganda machine, which they argue is so successful not just because of its production value but also because of its content. While the videos and print productions include enough gore to both instill fear in opposing forces and inspire potential foreign fighters, they also include depictions of civil society in the Islamic State to draw the less-violent minded. The narrative, they note, is powerful: “come to the Islamic State and be part of something.”

The second excerpt described the media crews within ISIS that help disseminate this propaganda and the emphasis that the group placed on civil society during initial the expansion of its so-called caliphate. “Unlike its counterparts in Yemen and North Africa,” they write,  “ISIS seemed to relish providing services, rather than simply seeing it as a PR strategy.”

In the third excerpt, the authors described ISIS’s practice of sex slavery, as well as the religious justification for the practice that the group expounds. And in the fourth and final excerpt, they delved into the the social psychology of cults, and what studies of previous cults can tell us about ISIS and its future.

Dan Byman and Jenn Williams also discussed ISIS, describing the differences and similarities between it and Al Qaeda in this week’s Foreign Policy Essay. The difference between the two groups lies in what enemy each focuses on. Al Qaeda focuses on the “far enemy”---the United States; convincing the United States to withdraw from the region will leave the corrupt dictatorships it has long propped up vulnerable to overthrow. ISIS, on the other hand, looks to the “near enemy”---the first order of business is the overthrow of apostate regimes in the region; the United States will be handled later.

Cody and I also dealt with ISIS this week in the form of a travel guide written by an ISIS militant to help aspiring jihadis reach the Islamic State. While pointing out the basic absurdity of the document, we also noted the emphasis it places on Twitter as a tool of jihad. The use of Twitter and other online platforms as a means of radicalization presents a challenge for policymakers: aggressively blocking jihadist content can help prevent radicalization, but carries costs both in lost intelligence and the limiting of free speech.

Ingrid Wuerth wondered if the Supreme Court listens to the Solicitor General’s recommendations when deciding whether to hear foreign relations cases to which the U.S. government is not a party. The data she analyzed indicates that, in instances which the Court formally requests a “call for the view of the Solicitor General,” the Court listens to the SG about two-thirds of the time. That rate represents a slight drop from the 79.5 percent rate for all cases that an empirical study found more than a decade ago. While that drop is by no means statistically significant, it could be taken to mean that “the Court seems increasingly skeptical of the views of the Executive Branch.”

Nevertheless, Ben told us about an instance in which a court was all ears when the government gave its advice. In New York this week, a federal judge threw out a defamation suit between two private parties at the government’s request. The suit involved a claim by a Greek shipping magnate that an anti-Iranian advocacy group had defamed him and his company by accusing him of violating sanctions on Iran. The government filed an intervening motion asserting that the completion of the case could result in the disclosure of state secrets, and the judge acquiesced by tossing the case.

Speaking of Iran, next Tuesday is the deadline for reaching a political agreement on Iran’s nuclear program. While U.S. negotiators wrestle over centrifuges and monitoring requirements, U.S. politicians wrestle with what role Congress should play in the approval of any deal. Jack took a closer look at the “Iran Nuclear Agreement Review Act of 2015” introduced by Sen. Bob Corker (R-TN) and noted that the provisions of the bill seem fairly reasonable. Jack says of it, “I don’t think the Bill makes any unreasonable demand or possesses any constitutional infirmity.”

Jack also discussed the U.S. government’s position on economic espionage, which he takes to be this: the U.S. government doesn’t hide the fact that it conducts economic espionage, but it does limit itself to not conducting this espionage on behalf of U.S. firms. This limit, Jack noted, doesn’t mean all that much, especially because the government’s “economic espionage benefits U.S. firms in the aggregate.”

Herb detailed the three main pieces to the argument against the stance that there should be a technological mechanism allowing law enforcement---but nobody else---to decrypt information.

On the topic of government access to communications data, the June 1 sunset of Section 215 is fast approaching. The Obama administration has said that if the provision sunsets the program will be shut down. But complicating congressional action to reauthorize the program (or not) are three pending circuit court cases dealing with Section 215. Orin Kerr noted that the outcomes of these cases will have significant implications for the program, whether decisions are published before or after Congress takes action on Section 215.

Marko Milanovic teased out some interesting results from a recent international poll on public attitudes toward government  surveillance. He pointed out, among other things, a distinct citizenship bias: people are generally more OK with government surveillance of foreign nationals than of citizens, no matter what country you’re in.

In light of growing concerns regarding China’s reclamation efforts in the South China Sea, Ingrid explained the four key features of U.S. policy in the region, but noted that these may not be enough to address the contested maritime claims between regional powers.

Cody tipped us off to the release of the FBI 9/11 Commission Report, which found that the Bureau has made “measurable progress” but that there is more ground to cover in “building key intelligence programs.”

Yishai Schwartz and Jennifer Williams provided a round-up of the latest news out of the Middle East, breaking down the Israeli elections and the newly launched war in Yemen. Yishai also argued against allowing anger at Benjamin Netanyahu to push the United States to support  a U.N. Security Council resolution condemning Israeli construction in contested territories.

Stewart Baker brought us this week’s Steptoe Cyberlaw Podcast, which, in addition to its usual round up of cyber news and lawsuits, features an interview with Richard Bejtlich.

Major General Michael Lehnert appeared on this week’s Lawfare Podcast. General Lehnert was the first commander of the Guantanamo detention facility and has since become one of the most prominent voices calling for its closure.

Ben also linked us to a new episode of Rational Security, wherein the gang tackles the Israeli elections and continuing White House-Israel tensions. On the Chess Clock Debates, Ryan Evans of War on the Rocks and Kori Schake of the Hoover Institution debate arming the Ukrainians.

And that was the week that was.