The Week That Was

The Week That Was: All of Lawfare In One Post

By Nick Basciano
Saturday, December 28, 2013, 10:00 AM

Continuing coverage of the President's Review Group Report: Ben posted a detailed two-part (so far) analysis in which he separates "the good from the bad, and both from the unimportant" in the Review Group's recommendations. Michael Leiter wrote in to help us digest the "concrete effects" of the report, not just the sound bytes. Raffaela posted a detailed comparison between the Report's FISA recommendations and congressional FISA reform proposals. Jack expressed concern over how safe data will be in the hands of a non-governmental body, and he also pointed out an interview with one of the Report's authors, Michael Morell, who "said some interesting things" on Face the Nation. Jack also commented on Evgeny Morosov's argument that as the value of big data rises, so does the state's advantage relative to its citizens.

Holiday present: The ODNI released a "mini-trove" of declarations relating to  the administration's post-Snowden use of state secrets privileges in two cases, Jewel v. NSA and Shubert v. Obama. Wells posted the documents, and Matt D. gave a concise summary of what they tell us.

In the ongoing legal saga of the bulk telephony metadata program, Southern District of New York Judge William H. Pauley III granted the government’s motion to dismiss in ACLU v. Clapper.  In doing so, Judge Pauley affirmed the legality of the bulk metadata collection program under 215/501. More to come on the opinion in the week ahead. Peter Margulies and Ben each offered thoughts on the opinion this morning.

It was a big Alien Tort Statute week too:  John discussed a recent Ninth Circuit decision that will allow the ATS case Doe v. Nestle to continue even after the Supreme Court's decision in Kiobel. John also noted another ATS-relevant decision, this one by Judge Scheindlin in an apartheid litigation case, which leaves "the door open a crack" for further ATS claims against the U.S. corporations involved.

Raffaela pointed out the D.C. Circuit's decision to deny habeus petitions from prisoners held at the Parwan Detention Facility in Bagram. She also posted President Obama's comments on the NDAA's Guantanamo-related provisions, which the President finds overly restrictive of his authority to transfer and prosecute detainees. And although this NDAA passed without amendment, John noted the dangers of allowing plaintiffs’ lawyers to reverse their losses in court with legislation attached as amendments.

Sean posted an update on Al Laithi v. Rumsfeld, where the plaintiffs filed a reply brief contesting the District Court’s holding that the defendants acted within the scope of their employment when detaining Al Laithi and the other detainees.

Radical groups continue to proliferate in Syria thanks to the assistance of Gulf donors. To help explain the problem, Dan Byman offered a post by Elizabeth Dickinson, Gulf correspondent for The National, who adapted her report “Playing with Fire: Why Private Gulf Financing for Syria’s Extremist Rebels Risks Igniting Sectarian Conflict at Home."

Bruce Riedel reviewed Getting Away With Murder: Benazir Bhutto’s Assassination and the Politics of Pakistan by Heraldo Munoz and in the process gave a clear explanation of the Bhutto assassination and the subsequent UN inquiry which Mr. Munoz chaired.

From the Department of Transparency: Responding to Rick Perlstein's accusatory blog post on The Nation, Ben posted the entirety of his communication with Mr. Perlstein in order to let the facts speak for themselves.

Is that you, KSM? Courtesy of the Financial Times, Ben gave us the photographic correction of the week.

And that was the week that was.