Ask Wells: #ComeyCrypto, Our Mysterious Publisher, and Cancelled Hearings

Wells Bennett
Sunday, October 19, 2014, 5:00 PM
I am stoked to post the first installment of Lawfare’s latest (and perhaps most peculiar) experimental feature: "Ask Wells." The format, as Benjamin Wittes explained earlier, is straightforward.  Readers can write in and ask questions on most any topic---from national security law to the site’s content and editorial choices to whatever other things may be on their minds.

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I am stoked to post the first installment of Lawfare’s latest (and perhaps most peculiar) experimental feature: "Ask Wells." The format, as Benjamin Wittes explained earlier, is straightforward.  Readers can write in and ask questions on most any topic---from national security law to the site’s content and editorial choices to whatever other things may be on their minds. I will do my best to answer---though I obviously do not promise to answer every single question. Here are three queries. The first didn’t come via the newly-minted “Ask Wells” channel at all, but instead over Twitter---where the ACLU’s technologist, Chris Soghoian, challenged Wittes about why nobody with a technical background would share the stage with FBI Director James Comey on Thursday. As you likely know by now, the latter made public remarks at Brookings, followed by questions from Ben and members of the audience. As you also likely know, the gist of Comey’s speech was to warn that new and more rigorous default cellphone encryption protocols will keep law enforcement from accessing data at rest in a timely fashion, and thereby block investigations of serious crime. I gather from Chris’ Tweet that, in his view, the addition of a tech-savvy person to the program was needed in order to push back against the FBI Director’s assertions about the bad consequences of “going dark”---to borrow government folks’ preferred and rather ominous term for the consequences of strengthened encryption. The absence of a technical voice, the worry went, doomed Thursday’s discussion to lopsidedness or inaccuracy; Ben and Brookings thus ought to explain the programming choice. I asked Ben for an explanation. Here's what he said:
First off, this is really a Brookings issue, not a Lawfare issue. But I make no apologies for giving the FBI director an opportunity to have a direct dialog with the Brookings audience without being part of a panel. To be sure, sometimes think tanks host panel discussions on this or that issue, along the lines Soghoian suggested in his tweet. But normally, when senior government officials want to give policy addresses, we don't put them on panels. Comey wanted to give a brief speech and then have a conversation with the audience about encryption. That's what we did, and I think the results speak for themselves. I'm proud of the event. For what it's worth, I would add that I think there was a good, rather skeptical back-and-forth between Comey and folks in the audience---which indeed comprised some tech-minded people, including Soghoian himself. He asked the morning’s first question, which was a strong challenge to Comey's premise, and at least one other civil liberties activist asked a question too. I have invited Soghoian to expound upon his thoughts on Comey's ideas in next week's Lawfare Podcast.
This brings us to the week’s second question: Nick Rostow, formerly of Yale Law School and these days of National Defense University, wrote in and asked who “puts [Lawfare] out.” That's an easy one: A non-profit corporation called the Lawfare Institute publishes Lawfare, with a big assist from Brookings---where Ben and Cody and I all work.  It’s roughly a partnership-type setup: the non-profit controls Lawfare’ s editorial and other policies, but the project very much depends on Brookings’ support; the two therefore work together closely from one day to the next. Lawfare also draws on any number of Brookings scholars in the context of the weekly Foreign Policy Essay, which is edited by Brookings Senior Fellow Daniel Byman. I’ll close with a query from the estimable journalist Margot Williams, who just joined the team over at The Intercept.  She asked why a scheduled hearing in the 9/11 military commissions case this week was abruptly cancelled by a military judge at Guantanamo. Public records made it hard to tell. As is maddeningly typical, the court’s order canning the hearing was noted on the military commissions’ website but not available for reads or downloads---owing to the automatic and almost always needless delay, imposed on all litigation documents by the Department of Defense, so as to ensure that filings do not contain national security secrets. So what gives? By now you may have read an update from the dean of GTMO journalism, the Miami Herald's Carol Rosenberg. She reported this week that, in essence, the military judge thought that going forward with this week’s hearing would be unproductive. These days the 9/11 case moves at a glacial pace for many reasons, one of which has to do with recent allegations regarding conflicts of interest in the representation of the accused. Such allegations were to be the subject of the scheduled session this week. (Because of the nature of the allegations, only the defense and specially-appointed Justice Department lawyers---ones entirely walled off from the 9/11 prosecution---were to take part.) From Carol’s piece:
Progress in the case has mostly been paralyzed since an attorney for accused 9/11 plot deputy Ramzi bin al Shibh told Pohl in April that FBI agents had compromised his team by questioning a member, and then trying to turn him into a secret informant. Other Sept. 11 defense team members alleged that their attorney-client privilege may also have been compromised by what the FBI agents were investigating, too. A special Justice Department prosecution team has told the judge that the probe is now closed, that information was forwarded to a Department of Defense security team and, from what they’ve seen of the FBI activity, no conflict-of-interest exists. Pohl tried to remedy it over the summer by severing Bin al Shibh from the five-man death penalty trial and planning to proceed with a four-man trial of alleged mastermind Khalid Sheik Mohammed and three other accused accomplices. The Pentagon prosecutors objected, however, and the judge reinstated the joint five-man prosecution at the last hearing in August. Pohl’s order seeks a filing from the defense lawyers. “It was clear that there’s more information on the investigation yet to come and any litigation on this topic would be premature and unproductive,” said defense attorney Cheryl Bormann, the lawyer for alleged Sept. 11 conspirator Walid bin Attash.
I asked around a little bit and heard stuff along the same lines.  It seems some discovery issues relating to the conflict question are still being litigated; the court also apparently wants to hear more from the defense about the nature of the alleged conflict before proceeding further. Got a pressing national security law question? Ask Wells. Got a complaint about Lawfare? Ask Wells. Need relationship or professional advice? Ask Wells. Need to know if your contemplated military action complies with the separation of powers or international law? Ask Wells. Got a question about the D.C. oughties music scene? Ask Wells. Send along good, interesting, or intelligent questions, and I’ll do my best to post answers.

Wells C. Bennett was Managing Editor of Lawfare and a Fellow in National Security Law at the Brookings Institution. Before coming to Brookings, he was an Associate at Arnold & Porter LLP.

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