The Week That Was

The Week that Was: All of Lawfare in One Post

By Raffaela Wakeman
Saturday, April 20, 2013, 10:00 AM

It's kind of a cliche to observe that it's been quite a week. Having spent five years in Boston and at the ‘Tute, I was pained to see my old stomping ground start to resemble a war zone during these past few days. Much of our coverage this week was focused on the investigation into the Boston Marathon bombing and aftermath, but there were also other significant items about Guantanamo, detention matters, noteworthy readings, a new podcast episode, and a whole lot of cybersecurity. Here's the weekly roundup.

With respect to Boston, we compiled reliable Twitter sources in the immediate aftermath of the bombing; shared Attorney General Eric Holder’s statement on the attack; and, during Friday's manhunt and lockdown of the Boston area, posted our list of Twitter sources and other essential news once more. As Friday's events unfolded, Ben offered some brief thoughts on the suspect's arrest, and Ritika and Susan dug up some background materials about Chechnya and Kyrgyzstan.  The two bombing suspects reportedly lived for a time in the latter, but are ethnically Chechen.

Though it has been a miserable week in most ways, Lawfare itself has had some good news. Ben announced this week what is a pretty big deal around here: Wells has become Lawfare's first-ever Managing Editor---a matter about which all of us are pretty stoked. Moreover, the first ever profile of the blog came out---this CQ Weekly article by Tim Starks.

Alan, meanwhile, summarized the goings-on last weekend down at Guantanamo, where many detainees continue to protest by refusing food.  Security guards used force against the detainees, in an effort to herd them from communal areas into solitary confinement cells. Ben noted a New York Times op-ed by Samir Naji al Hasan Moqbel, a detainee participating in the hunger strike.  And Wells flagged a federal judge's conclusion that he lacked jurisdiction to act on the emergency motion filed by one of the hunger strikers---who said he had been denied potable water, among other things.

In military commissions, this was the week that wasn't. Military Judge James Pohl postponed hearings scheduled for next week in the 9/11 military commission case---just as he earlier had postponed hearings scheduled for this week, in the Al-Nashiri case.  Defense lawyers sought the delay after court officials inadvertently disclosed defense communications to prosecutors in another case, Al-Qosi, and defense work product disappeared from ostensibly secure computer networks.

The Constitution Project released its report on the treatment of counterterrorism detainees, and concluded that the U.S. engaged in torture after 9/11. Ritika shared the report with Lawfare readers.

Steve discussed a key press rights decision by the U.S. Court of Appeals for the Armed Forces.  The court said it lacked jurisdiction to hear arguments by the media regarding their access to the ongoing Bradley Manning trial.  According to the Center for Constitutional Rights, the case's trial judge had closed certain aspects of the proceedings without  sufficient explanation or justification.

The Supreme Court released its decision on the centuries-old Alien Tort Statute (ATS) in Kiobel v. Royal Dutch Petroleum on Wednesday. Wells gave us the gist of the decision and linked to the full opinion. The Court concluded that the presumption against extraterritoriality applies to claims under the ATS---and that nothing in the statute rebuts that presumption.

John noted the amici urging the Supreme Court to grant review in an immunity case involving Somalia’s former Defense Minister, Mohamed Ali Samantar. Samantar appeals the Fourth Circuit's conclusion that he did not enjoy immunity from jurisdiction for acts that are jus cogens violations under international law.

There were some great suggested readings on a variety of topics, including:

  • A new law review article by Brookings nonresident senior fellow John Villasenor appearing in the Harvard Journal of Law and Public Policy that Ben highlighted, entitled “Observations from Above: Unmanned Aircraft Systems and Privacy.”
  • A piece that I am looking forward to reading about the financing of terrorism---h/t to Ken for noting the draft on SSRN.
  • Gabriella Blum’s forthcoming contribution to the book Law and War, which Ken also noted. It’s entitled “The Individualization of War: From Collectivism to Individualism in the Regulation of Armed Conflicts.”

On AUMF matters, Bobby mused that Lashkar-e-Taiba’s activities in Afghanistan may render it one of the Taliban’s “associated forces” under the AUMF, pointing to a Long War Journal piece describing the recent capture of one of the group’s senior commanders.

Much goings-on in the cyber-world: Paul was all over the House of Representatives’ consideration of cybersecurity reform bill, CISPA, noting the House Rules Committee’s reporting of the bill and the White House’s veto threat, and then the bill's passage on Thursday. Allan Friedman, Fellow at Brookings, sent in his thoughts on CISPA’s passage.

The United States isn’t the only country working on cybersecurity reform: over in Germany, draft legislation has been shared publicly, and Paul got his hands on an English language summary of the proposal.

Paul also provided a readout of the ABA Standing Committee on Law and National Security’s meeting on comprehensive cyber defense, particularly on the general commentary about “active defenses” or “hack backs.” He shared a new paper about international cybersecurity regulation authored by Michael Glennon of Tufts University. Paul also offered a partial mea culpa for believing that the International Telecommunications Union and its Secretary General were “Machiavellian” and that he lacked sincerity.

In the closely-related area of ominous technologies, Ben shared a video with commentary by British astrophysicist and cosmologist Lord Martin Rees about threats posed by easy access to 21st century technologies.

And try as we might, we just we can’t get away from the debate over the targeted killing program: Ritika followed up on her post last week about Pervez Musharraf’s apparent admission to giving consent to the U.S. to carry out drone strikes within Pakistani territory. The Chief Judge of Peshawar’s high court contradicted the former president’s statement, saying that the strikes are a violation of Pakistan’s sovereignty.

Matt commented on the letter sent to President Obama from several human rights organizations urging him to disclose his administration’s targeted killing standards and criteria.

Our latest podcast episode is now available. It is the audio from a Georgetown Law event featuring Tom Malinowski of Human Rights Watch, Missy Cummings of MIT, and Ben on autonomous weapons---Washingtonian’s Shane Harris served as moderator.

John expressed relief that the STOCK Act requirement of internet publication of financial disclosures for senior administration officials, military officials and congressional staff has been cut. He argued alongside a number of other current and former national security officials that the provision would threaten the national security and privacy of those subject to the disclosure.

The news broke that President Obama has decided to nominate Avril Haines to be the next Legal Advisor to the Secretary of State---John was thrilled to hear this.

And on the lighter side, we got this Tumblr of GTMO’s prison library collection created by Charlie Savage.

And that was the week that was. Let’s hope for a less-newsy-week next Monday. And I’ll repeat my request: please drop me a line and let me know what you think of this feature. Is a week-ending roundup useful or just repetitive? And how could it be better?