The Week That Was

The Week That Was: All of Lawfare In One Post

By Nick Basciano
Saturday, December 21, 2013, 10:00 AM

Who's Ringo? This week District Court Judge Richard Leon’s strong rebuke of bulk telephony metadata collection in Klayman v. Obama stole the headlines---from dismissing Smith v. Maryland as excessively antiquated to using a Beatles analogy (that, ironically, is even older than Smith), the opinion has triggered dramatic responses from all corners. Raffaela boiled down the decision to the essential points. Paul posted his initial impressions of where the opinion may have gone astray. Ben weighed in with similar concerns and explained why he doesn't see the decision withstanding D.C. Circuit review. Paul disagreed with the logic behind Judge Leon's seemingly decision to stay his own preliminary injunction. Steve gave a brief answer to the stay/injunction concerns and explained why he thinks the opinion's constitutional analysis and holding may have been unnecessary.

On the heels of Judge Leon's Klayman opinion, the President’s Review Group on Intelligence and Communications Technologies released its findings. Ben called the report "very awkward" for President Obama and suggested that the group's conclusions undermine the administration which empowered it. Peter Margulies explained that while the Report has a few good ideas, its more extreme solutions rely more heavily on "sloganeering" than on convincing analysis. Joel Brenner compared the report to a fruitcake in a highly entertaining critique, calling parts of it "a journey to La-La Land." Jack, by contrast, stood by the report's overall trajectory and found himself in "wild agreement with the basic approach at the heart of the Report." Raffaela tipped us off to a statement by the congressional intelligence committees responding to the Report's finding and reinforcing the value of the telephony metadata program.

As promised, the Lawfare Podcast had a big week. Ben and Bobby brought us where no podcast had gone before with the special edition "Inside NSA: We Brought In a Recording Device So You Don’t Have To." Here's the full series:

  • Episode #52: Inside NSA, Part I—An Interview With General Counsel Rajesh De
  • Episode #53: Inside NSA, Part II–Wherein We Interview the Agency’s Chief of Compliance, John DeLong
  • Episode #54: Inside NSA, Part III—Wherein We Talk to Lonny Anderson, Chief of NSA’s Technology Directorate
  • Episode #55: Inside NSA, Part IV–We Speak with Anne Neuberger, the Woman on Front Lines of NSA’s Relations with Industry
  • Episode #56: Inside NSA, Part V–An Interview with Fran Fleisch, the Agency’s Acting Deputy Director

Hearings in the 9/11 case also took place this week, and Wells was back in the saddle with full coverage from the Fort Meade CCTV feed. He posted the statements of Chief Prosecutor, Brigadier General Mark Martins to kick off and sum up the week's events. Wells gave his own blow-by-blow of the hearings (TuesdayWednesday, and Thursday). Raffaela posted the case's classification rules put in place by Military Judge James Pohl, including the contested classification of detainees' recollections.

2.47 percent closer to closure: This week Raffaela noted four Guantanamo detainee transfers: two men were sent to Saudi Arabia and another pair were transferred to Sudan. The number of detainees at Guantanamo now stands at 158.

With time slowly running out, Bobby weighed potential solutions to the U.S. detention problem in Afghanistan.

In Aamer v. Obama the government filed a response objecting to a request for additional briefings on new force-feeding protocols. Jane posted the letter and gave us the gist of the argument. She also noted the detainees' motion to compel the government to disclose the details of the force-feeding procedures it has been so reluctant to produce.

Raffaela provided a quick update in Hatim v. Obama, the counsel access case, where the Justice Department has submitted a letter contesting previous descriptions of the body searches in question.

Wells linked to the "unsurprising" decision in Al-Nashiri v. MacDonald in which the 9th Circuit affirmed the dismissal of Al-Nashiri's suit.

We linked to video of the SSCI confirmation hearing for Caroline Krass to become the next head of CIA's Office of General Counsel (OGC). Jack pointed out Krass's written responses to Additional Prehearing Questions, and Ashley took a close look at Krass's answer to the question of whether covert action must comply with treaties to which the U.S. is party.

Jack posted an essay by Lucas Kello of the Harvard Kennedy School in which Kello uses the tools of international relations theory to reexamine cyber war.

To look again at the ominous Chinese declaration of an Air Defense Identification Zone (ADIZ) in the East China Sea, Dan Byman brought us an essay by Oriana Skylar Mastro of Georgetown University on “China’s ADIZ – A Successful Test of U.S. Resolve?

Lawfare was hit with some cyber attacks early in the week, and Ben asked for your patience through any outages---which turned out to be brief.

In the event you wanted to peer into the "Black Chamber," we linked to a 60 Minutes episode taking a rare look into The Fort.

And that was the week that was. Happy Holidays.