The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, April 11, 2015, 8:57 AM

This week, Ben announced the upcoming Triple Entente Beer Summit, a “live taping extravaganza” featuring the cast of characters behind the Lawfare Podcast, the Steptoe Cyberlaw Podcast, and the Rational Security podcast. The event will be on the evening of May 7 at the Washington Firehouse and will support Lawfare and its ongoing website redesign. Get your tickets here!

Carrie Cordero critiqued three of the recommendations for FISA reform put forth by Liza Goitein and Faiza Patel in their recent report entitled “What Went Wrong with the FISA Court.” Specifically, she argued that the current collection framework established by Section 702 is the best option we have; that the creation of a FISA special advocate would weigh down an already-bloated bureaucracy; and that restoring the “primary purpose test” would limit the valuable interaction between criminal and intelligence investigators.

Goitein and Patel then responded to Carrie’s criticisms. First, they pointed out that Carrie’s argument for the necessity of Section 702 actually applies only to a subset of foreign-to-foreign communications that does not appear all that relevant to national security. They went on to point out that, whatever new bureaucracy a FISA special advocate may create, the special advocate would serve a profoundly important function entirely absent from the FISA Court as currently constituted. Finally, they pointed out that the “wall” that separated criminal intelligence investigators pre-9/11 was actually not the result of the “primary purpose test” at all.

On Friday, Carrie replied to Goitein and Patel’s point regarding Section 702, taking issue with their assertion that the goal behind the amendment was “to remove the requirement of an individual order for the acquisition of communications between foreign targets and U.S. persons.” Carrie asserted that the legislative record doesn’t back this up. Moreover, Carrie argued, whether or not Goitein and Patel intend it to, mandating individual court orders for the interception of communications involving U.S. persons would in fact also mandate court orders when targeting the communications of foreigners abroad.

In other FISA developments, Yishai reported the news that two new judges have been appointed to seven-year terms on the FISA Court.

Ben wrote about the approaching sunset of Section 215 and the ramifications of Congress allowing it to lapse. The consequences of this failure to act are threefold. First, it would show that calcified partisanship in the legislature now extends to signals intelligence reform. Second, it would leave SIGINT reform entirely to the executive branch and the courts. And finally, it would call into question the stability of Section 702, a far more important provision that will sunset in 2017.

Rounding out our surveillance coverage, Ben posted two videos of interest to Lawfare readers. The first was of a hearing by the Privacy and Civil Liberties Oversight Board on “counterterrorism activities conducted by the Intelligence Community under Executive Order 12333.” The second was an interview John Oliver conducted with Edward Snowden in Moscow.

Wells posted the newest installment in the Lawfare Research Paper Series, a paper by Nathan Wood entitled “The Ferguson Consensus is Wrong: What Counterinsurgency in Iraq & Afghanistan Teaches Us About Police Militarization and Community Policing.” Wood argued that the Ferguson Consensus is incorrect in asserting that community policing is a necessary solution to police militarization. In fact, he asserted, lessons from counterinsurgency in Iraq and Afghanistan show us that police militarization and community policing can coexist as a coherent approach to crime.

Last week, Jack wrote about how the Obama administration’s argument for disregarding restrictions on the transfer of Guantanamo detainees in the Bergdahl swap could be extended to justify closing Guantanamo. On Friday, Jack explained two legal documents that seem to complicate the legal justification for such a move: an Office of Legal Counsel opinion authored by Steven Bradbury and the concurrence in Kiyemba by Judge Brett Kavanaugh. Jack noted that, while these two documents may give sanction to the Bergdahl transfer insofar as it was an emergency situation, they seem to militate against the administration's using the Bergdahl argument to close Guantanamo. Jack followed this post with one exploring the various means available to Congress to prevent the administration from doing just that.

Yishai described a case on petition for cert from the Supreme Court with significant potential separation-of-power implications. Bank Markazi v. Peterson raises two important questions about the proper distribution of power between the three branches of government. The first asks to what extent Congress can dictate the outcome of a judicial proceeding, and the second asks whether a law Congress passed allowing collection of assets frozen by the President “interferes with the President’s ability to conduct foreign affairs.” In the current context of inter-branch wrangling over the Iran deal, Yishai noted that developments in the case should be watched very closely.

Paul Rosenzweig described the current debate over where the corporation managing the Internet’s naming function should be incorporated. As incorporating ICANN outside of the United States doesn’t bring any substantive legal benefit vis a vis the goal of increasing transparency and accountability at ICANN, Paul argued, those arguing for re-incorporating ICANN abroad are doing so for purely political reasons.

Ben laid out some of the consequences of Congress’s unwillingness to pass an AUMF for ISIS. Failing to pass such an AUMF while both refusing to question the legality of the current operation and even pressing the President to do more, Ben reasoned, means that Congress accepts President Obama’s assertion that the current campaign is authorized under the 2001 AUMF. Accepting this “bold and relatively attenuated” argument sets an important precedent for future interpretations of the AUMF, he claimed.

The 2001 AUMF was also mentioned in the speech that Defense Department Chief Counsel Steve Preston gave on  “The Legal Framework for the United States’ Use of Force Since 9/11” at the Annual Meeting of the American Society of International Law. Cody posted the text of Preston's address, and Bobby provided some thoughts on Preston's remarks regarding "associated forces" under the 2001 AUMF, international law as it pertains to the use of force in Syria, and the future of the 2001 AUMF.

Yishai pointed out a worrisome ambiguity in the State Department’s fact sheet on the Iran framework agreement: it’s unclear what it means for Iran to “implement” the Additional Protocol and Code 3.1. The Iranian fact sheet seems to indicate that Iranian implementation will be “voluntary and temporary” until Iran formally ratifies the two agreements. While that sounds good, Yishai noted, much will depend on how quickly the process of ratification proceeds.

Jack linked us to his review of Bruce Schneier’s new book, Data and Goliath: The Hidden Battles to Collect Your Data and Control Your World.

In this week’s Foreign Policy Essay, Elizabeth Arsenault and Tricia Bacon discussed the confusion surrounding what, exactly, “safe haven” means, and how a clearer definition of the term could improve policies aimed to eliminate terrorist safe havens.

Jennifer Williams and Yishai Schwartz rounded up the latest stories out of the Middle East in the “Middle East Ticker.”

Andy Wang told us about an event at Harvard Law next Tuesday featuring Guantanamo Chief Prosecutor Brigadier General Mark Martins.

This week’s Steptoe Cyberlaw Podcast covered the latest developments in cyber and featured an interview with Joseph Nye.

On this week’s Lawfare Podcast, Brookings scholar Fiona Hill talked with Ben about who Vladimir Putin really is, and what his real identity can tell us about how to handle him.

Ben posted the latest episode of the Rational Security, which included a special guest appearance by Brookings Scholar Jonathan Rauch.

And that was the week that was.