The Week That Was

The Week that Was: All of Lawfare in One Post

By Sebastian Brady
Saturday, May 9, 2015, 9:25 AM

On Thursday, the Second Circuit Court of Appeals struck down the NSA’s bulk telephone metadata collection program by ruling that the program wasn’t authorized by the language of Section 215 of the Patriot Act. Ben posted the Court’s 97-page opinion, and Orin Kerr linked us to his take on the decision over at the Volokh Conspiracy. Liza Goitein provided her thoughts on how the ruling might impact the legislative debate regarding Section 215 reauthorization. Though the legislative option of "clean" reauthorization (as proposed by Sen. Mitch McConnell) was the option most dramatically affected by the ruling, the impact on the other two paths forward---reform through the USA Freedom Act or a simple sunset---is also significant, if not immediately clear. While Liza posited that the decision “may end up being very good news for USA Freedom,” she noted that the decision may have just muddled the legislative debate.

The decision also raises serious questions about how, exactly, the Court expects Congress to legislate sensitive national security matters, according to one Lawfare reader who wrote in anonymously. For one thing, the Court seems to question Congress’s determination of who should have been aware of the Section 215 program, despite the fact that Congress has the authority to make those determinations itself under the rule-making clause. Moreover, the Court indicates that there needs to be “broad discussion in the Congress or among the public” in order to constitute knowing ratification, but doesn’t address how that squares with Congress’s ability to legislate classified national security programs.

David Kris also provided some thoughts on the decision, and mused that although the ruling reinforces that we are at a crucial policy juncture a la Church/Pike and 9/11, there exists much greater divergence in views on what direction in which to steer policy than in those instances. He further noted that this divergence extends internationally as well, insofar as European countries appear to be pushing for enhanced surveillance measures while the United States may be going the opposite route.

Ben also remarked on this divergence, though with a perhaps slightly tarter tone. The remarkably permissive French surveillance law breezing through the French parliament and recent revelations that German intelligence agency BND spied on European companies and possibly people, Ben pointed out, puts the lie to European protestations over U.S. surveillance. It turns out that Europeans aren’t really worried about unchecked surveillance as such. “It’s American surveillance Europeans can’t tolerate. It’s American access to data by either the menacing NSA or the rapacious Google and Facebook.”

Ashley Deeks also noted the German spying revelations, but put them in the broader, post-Snowden surveillance context. Since the leaks, she wrote, states have become generally much more forthcoming about their respective views on foreign intelligence activities and their relation to international law. This development has accomplished three main things: reveal actual foreign surveillance activities, initiate a debate on international law’s relevance to these activities, and “produce (verbal) state practice and opinio juris in response to” these activities. Together, these reactions are priming the development of international law.

While those watching the watchers focused on the Second Circuit’s opinion or the French and German surveillance developments, one germane court decision slipped under the radar. On Tuesday, Wells linked to an en banc decision by the Eleventh Circuit Court of Appeals in United States v. Davis. The decision held that compelling a third-party “compelling the production of a third-party telephone company’s business records containing historical cell tower location information” does not violate the Fourth Amendment.

Bobby told us about the conclusions reached in a document by the U.N. Working Group on Arbitrary Detention describing what a prohibition on arbitrary detention actually means in practice, including in the context of armed conflict. Among other things, the group writes that non-military judicial review of detention may be required even for POW detentions and definitely is required for duration-of-conflict detentions of combatants without POW status.

Speaking of detention, Steve Vladeck recapped some remarks by former Supreme Court Justice John Paul Stevens about Guantanamo. Among other things, Justice Stevens noted the problematic nature of the statutory ban on GTMO detainee transfers and mused that the government should pay reparations to those held at Guantanamo who have been shown to not present a security threat. And rounding out our week’s Guantanamo-related news, Wells informed us that Omar Khadr, the Canadian former Guantanamo detainee convicted of war crimes, was released from Canadian prison on bail, despite a request from the government to block his release.

Yishai broke down three recent reports on the 2014 war in Gaza and weighed their respective merits. While two survey-heavy reports, one from the Naval War College and one from an organization called Breaking the Silence both proffered something of value, they fell short for different reasons. A summary of an investigation into several incidents involving UN schools conducted by the UN Headquarters Board of Inquiry, on the other hand, provides a good starting point for an investigation, with its “nuanced and objective” reporting of facts.

In this week’s Foreign Policy Essay, John Mueller and Mark Stewart offered a solution to the dilemma of how to protect against terrorist attacks without overreacting whenever somebody makes empty threats on the Internet. The solution, they posited, involves law enforcement's showing those who make probably empty threats online that they are being watched, in order to scare them straight.

Kenneth Anderson reviewed International Law in the U.S. Legal System, 2nd Edition, by Curtis A. Bradley. Ken notes that “Bradley has written an elegant book … a highly readable volume” that deals with a variety of highly relevant topics dealing with the intersections between international law and U.S courts.

Ken and Ben also informed us that their book, Speaking the Law: The Obama Administration’s Addresses on National Security Law, “a detailed examination of the speeches of the Obama administration on national security legal issues,” has been released in hard copy by the Hoover Institution Press.

This week’s Lawfare Podcast featured audio from a panel discussion hosted by Johns Hopkins University’s Center for Advanced Governmental Studies entitled “Whistleblowing and America’s Secrets: Ensuring a Viable Balance.” The discussion, which followed hot on the heels of last weekend’s disclosure by the New York Times of three covert CIA operatives, featured Steve Vladeck, Ken Dilanian, Dr. Gabriel Schoenfeld, and Bob Litt, General Counsel for the Office of the Director of National Intelligence.

 In Episode #65 of the Steptoe Cyberlaw Podcast, Stewart Baker went at it (cordially, of course) with Bruce Schneier over cybersecurity, Big Data, surveillance, and Bruce’s new book, Data and Goliath.

 And that was the week that was.