The Week That Was

The Week That Was: All of Lawfare In One Post

By Nick Basciano
Saturday, January 4, 2014, 10:00 AM

Reviewing the Reviewers:  The President's Review Group report continues to inspire debate. Carrie Cordero gave a thoughtful three-part analysis of the Report: Part I looked at the Review Group's process and asked if it was adequately thorough; Part II discussed the theme of intelligence reform that the Report seemed to embrace; and Part III found the diamond in the Report's rough--the need to harden classified networks. Ben posted the next installment of his own analysis of the specific recommendations (here's last week's Part I and II) that looked at Chapter IV and explained why he found it to be the weakest and most convoluted section of the Report. Ben also gave us Stewart Baker's brief comments on Chapter IV's Recommendation #13, a recommendation which Mr. Baker found to be simply "insane."

Metadata Twist:  For those not wanting to delve into the judge's prose itself, Lauren gave a full summary of Judge Pauley's opinion that granted the government's motion to dismiss in ACLU v. Clapper and held that the collection of bulk telephony metadata under section 215 is, in fact, lawful. Raffaela noted that the decision, along with Klayman v. Obama, has now been appealed. She also pointed out a new D.C. Circuit decision that exempts "exigent letters” from FOIA action.

Ye Old Privacy Shop:  Ben presented the latest in the Lawfare Research Paper Series, "Mr. Wemmick's Condition; Or, Privacy as a Disposition, Complete with Skeptical Observations Regarding Various Regulatory Enthusiasms" by Joel Brenner. The essay takes a careful look at the "tectonic plates" beneath today's privacy debate by tracing the development of privacy values. Jane responded to Evgeny Morozov and Jack by looking further into the legal considerations of how companies use and secure the data of their users.

A Less Bleak House?: Raffaela posted a statement by Guantanamo defense counsel David Remes who provides a look back on Guantanamo developments in 2013. She also noted that the last Uighur has been transferred from Guantanamo to Slovakia, bringing the total number of detainees at Guantanamo to 155. John looked back on the long effort to resettle all 22 Uighurs who had been held at the facility. Ben posted a PBS interview with Guantanamo Envoy Cliff Sloan who discussed the recent flurry of transfers and expressed his strong belief that Guantanamo will close.

More on detention: Updating us on Abdullah v. Obama, Sean summarized Abudullah's reply-brief, which he found to be "long on rhetoric and short on winning arguments." Wells linked to the cert petition in Hedges v. Obama. Raffaela gave a comprehensive summary of the D.C. Circuit's recent decision to reject habeas appeals by three detainees currently held at the Parwan Detention Facility in Bagram on the basis that the court has no habeas jurisdiction over detainees held in a war zone. Bobby looked at the recent preliminary determination by the Karzai administration to release 88 detainees without  prosecution and against strong protests from the United States.

John discussed the SEC's potentially ill-conceived conflict minerals rule, codified in the Dodd-Frank act, and gave reasons why the rule may both harm the country it aims to protect (the Democratic Republic of the Congo) and impose unnecessary financial burdens on U.S. companies.

In this week's Foreign Policy Essay, Daniel Byman posted C. Christine Fair's essay "Lashkar-e-Taiba: Pakistan's Domesticated Terrorists" that looks at the "misunderstood" terrorist group's use of social welfare activities and cooperation with the Pakistani government.

Jeff Kahn, a professor at SMU Law, guest posted on the use counterterrorism watchlists, the constitutionality of which will be decided by an upcoming district court decision in Ibrahim v. Department of Homeland Security.

Jack pointed out Eric Posner's new blog that may have some relevance to Lawfare readers.

Ben regretted to inform you that Rep. James Sensenbrenner didn't take home any of the first ever Privy awards, which recognize "dubious accomplishments in privacy policy." Here's Stewart Baker announcing the winners.

And that was the week that was.