The Week That Was

The Week That Was: All of Lawfare in One Post

By Raffaela Wakeman
Saturday, April 27, 2013, 2:00 PM

Much of this week's Lawfare commentary concerned the recently-filed case against Boston bombing suspect Dzhokar Tsarnaev. But that's not all. Among other things, we noted critical developments in Guantanamo cases, criminal as well as civil.  And we posted pieces about targeted killing and drones; rewards for helping to capture war criminals; the intersection of cybersecurity and privacy; the use of robot technologies to investigate crime; and the Assad regime's alleged deployment of chemical weapons.  There was pure law geekery, too:  it seems provisions of the famously dense Title 50 will be re-organized.

Bobby explained why Dzhokar Tsarnaev shouldn't be designated an enemy combatant, while Ben offered four reasons on why Senators Graham and McCain were wrong to call for such a designation in the first place.  (Wells shared the transcript of Senator Graham’s press conference where he reiterated his reasoning.)  Bobby also outlined some possible charges against the defendant (and correctly predicted the inclusion of a WMD charge).  And Alan alerted us to a Podcast episode featuring Tsarnaev's recently-appointed public defender.

After it was unsealed, Wells put the criminal complaint against Tsarnaev up on the blog; and after he’d been Mirandized, Bobby hypothesized on whether the suspect would cooperate with authorities. Wells noted details from a New York Times account of an initial hearing in United States v. Tsarnaev, which took place at his hospital bedside.

We shared this important piece by the President of the Muslim Public Affairs Council, Salam al-Marayati, on how best to combat extremism in the wake of the Boston attacks.

Susan and Ritika wrote a piece on the Huffington Post about Chechnya; Alan likewise shared his own HuffPo piece, on national security reform: he said it was too soon to consider the Boston bombing an intelligence failure, and thus also too soon to propose this or that change to our approach to counterterrorism.  Alan later pointed to polling data regarding Americans’ (un)willingness to trade personal freedoms for greater security.

And despite the mounting evidence against Dzhokhar Tsarnaev, a contingent now insists on his innocence.  Ben shared a few tidbits from the nascent "Tsarnaev is innocent" movement.

Speaking of terrorism trials, we were surprised when the D.C. Circuit granted the government’s petition for rehearing en banc in the military commission case of U.S. v. Al-Bahlul.  Wells and Ben think the government may end up with en banc petitioner's remorse.  Al-Bahlul queried the court regarding the scope of new briefs to be filed, and I noted the query. For those who need to do some catching up on Al-Bahlul and the closely-related case of Hamdan II, Alan helpfully put together this explainer.

Apropos of detainees, the situation in Guantanamo continues to deteriorate.  We linked to this readout by AP reporter Ben Fox on the hunger strike and guard-detainee tensions.

In the Ninth Circuit appeal of Al Nashiri v. MacDonald,  attorneys for retired military officials asked to participate in oral argument.  Wells posted the amici's request.

In Hedges v. Obama, the Second Circuit denied plaintiffs' motion for a supplemental briefing on issues arising from the Supreme Court’s recent Clapper decision.  Wells pointed out the motion's denial.

John wrote a lengthy piece reflecting on the Supreme Court's Kiobel decision, and noting the Court’s recent grant of cert in another Alien Tort Statute case, DaimlerChrysler AG v. Bauman.

We posted law student Mary Laurie's rewrite of the DOJ White Paper (which took the perspective of the Chinese government); and we flagged a Cato Institute drones event featuring Ben, Georgetown Professor Rosa Brooks and Cato’s Benjamin Friedman and Malou Innocent. And Ben reflected upon participating alongside Ken Anderson at the Oxford Union in a debate on drones.

noted Tuesday’s hearing before a Senate Judiciary subcommittee about the targeted killing program, providing witness testimony and links to the video. John highlighted part of Peter Bergen’s testimony, wherein Bergen said U.S. drones have killed both high and low-ranking members of Al Qaeda and affiliated groups.

Gregory McNeil wrote in with the final guest post in his series about targeted killing.  He proposes five reforms to improve the drone program's transparency.

Former counterterrorism official Philip Mudd stopped by Brookings to have a chat with Bruce Riedel, himself a Brookings scholar and friend of Lawfare.

Ben wondered whether a “throwbot” had been used in a raid on the home of since-cleared ricin mailing suspect Kevin Curtis. Ben got to try out the technology and bug fellow scholars here at Brookings!

The Department of Homeland Security’s Privacy Office released a “Privacy Impact Assessment” on Einstein 3, a system for protecting federal cyber networks.  Paul was all over that.  Ditto this rather interesting case in which the government was denied court authorization to install surveillance software on a suspect’s computer.

Attention, attention! National security nerds everywhere will want to read closely the Law Revision Counsel’s re-organizing of certain provisions of Title 50. Bobby already did.

John commented on the State Department’s offering of a $5M reward for information leading to the arrest, transfer and conviction of Joseph Kony and others charged with war crimes by the ICC.

Matt provided his and his CFR colleague Jim Lindsay’s thoughts about the Obama administration’s quandary in dealing with allegations that the Assad regime has used chemical weapons.

And that was the week that was. We continue to solicit readers' views about this experimental feature.  Please drop me a line and let me know yours.