Lawfare News

The Rip-Roaring, Crazy Week that Was: All of Lawfare in One Very Long Post

Jordan Brunner
Saturday, February 4, 2017, 8:33 AM

Unless you’ve been living in a cave, you already know that on Friday of last week, President Trump signed an executive order banning refugees from seven Muslim majority countries from entering the United States. The action led to numerous protests, litigations, the firing of former Acting Attorney General Sally Yates for insubordination—and a very busy week at Lawfare.

You ready? Here goes...

Published by The Lawfare Institute
in Cooperation With

Unless you’ve been living in a cave, you already know that on Friday of last week, President Trump signed an executive order banning refugees from seven Muslim majority countries from entering the United States. The action led to numerous protests, litigations, the firing of former Acting Attorney General Sally Yates for insubordination—and a very busy week at Lawfare.

You ready? Here goes...

Quinta Jurecic flagged former Yates’s letter announcing that the Justice Department would not be enforcing Trump’s refugee ban. Jack Goldsmith shared his thoughts on why Yates’ reasons for not enforcing Trump’s refugee ban were weak and unpersuasive, and Benjamin Wittes argued that Yates should have resigned rather than refuse to enforce the order.

Susan Hennessey, Jane Chong, and Chris Mirasola assured those concerned that, based on their reading of the relevant statutes, Acting Attorney General Dana Boente can, in fact, issue FISA applications. And Quinta posted the Lawfare Podcast: "Goldsmith v. Lederman on Yates":

Quinta flagged a White House press release listing senior Trump DOJ nominations and she flagged the City of San Francisco’s complaint in federal district court against Trump’s order on sanctuary cities.

Peter Spiro expressed optimism that the courts would strike down the Trump administration’s refugee travel ban based on a set of unprecedented circumstances.

Quinta posted the OLC Memorandum assessing the legality of the refugee ban, and the memorandum from White House counsel to the State Department on the status of green card holders.

Suzanne Maloney described the impact of the executive order for Iranians. Paul Rosenzweig pointed out an unintentionally ironic response by the Trump administration on its refugee executive order that is reminiscent of an Obama administration immigration policy.

The executive order also led to the filing of a State Department dissent memo that has received more than 1,000 signatures. Ben, Susan, and Quinta provided the full text of the draft State Department dissent channel memo, and Quinta posted a letter from two government watchdogs requesting that the Office of Special Counsel investigate White House Press Secretary Sean Spicer’s comments on the State Department dissent memo.

The refugee ban and the fallout surrounding it was one of the topics of discussion for the Rational Security gang:

It was also the subject of many posts on Just Security, which Ben flagged. Michael Price examined whether the ban violates the rule against ideological exclusion under the INA.

Daniel Byman argued that Trump’s refugee policy will increase terrorism, which in turn will help Trump.

Doyle Hodges examined whether we should trust the military to protect us from the revival of torture based on the current legal landscape, and General Michael Hayden and Ben explained the special responsibility advocates of strong national security measures have.

In another big shuffle to national security policy, Donald Trump put Steve Bannon on the Principals Committee of the National Security Council as a full member, and demoted the DNI and the Chairman of the JCS from being members to mere invitees to the PC. Jordan Brunner noted responses by high-profile officials to Trump’s actions on the NSC, Russell Spivak and Jordan recounted the history of the National Security Council to demonstrate that Steve Bannon’s role is truly unusual, and Michael J. Gottlieb explained the problem that Steve Bannon’s particular placement on the Principals Committee presents.

In response to uproar on the Internet claiming that Bannon’s appointment was illegal without Senate approval, Jordan also clarified that Steve Bannon does not need to be confirmed by the Senate to exercise his role on the Principals Committee. He also covered the dismissal of the charges against NSC staffer Sebastian Gorka for trying to carry a firearm onto an airliner.

In other news, President Trump displayed mixed results in his efforts at interacting with other countries. Chris Mirasola described the week that the Trump administration had on alliance management in “Water Wars.” Rick Houghton explained the Iranian ballistic missile test and its aftermath.

Trump nominated Tenth Circuit Court of Appeals Judge Neil Gorsuch as his nominee to fill the late Justice Antonin Scalia’s seat. Helen Murillo, Yishai Schwartz, and Clara Spera provided a summary analysis of Gorsuch’s national security cases. Jack Goldsmith and Ben provided the precedent of Senator Lindsey Graham and Justice Elena Kagan as a classy way for Democrats to handle Gorsuch’s confirmation hearings. And Peter Margulies examined the nominee’s misplacement of his characteristic empathy in Kerns v. Bader.

Turning to terrorism, Nora Ellingsen examined the terrorism prosecutions of co-conspirators Akhror Saidakhmetov and Abdulrasul Juraboev, along with Justin Kaliebe and Emanuel L. Lutchman. Jane Chong expressed alarm at systematic alt-right world-building by Steve Bannon and Michael Flynn as indicated by changes in the CVE program. Bobby Chesney highlighted four key issues from the Yemen raid.

Bobby also posted Episode 2 of the National Security Law Podcast: “Immigration Constraints, Ground Ops in Yemen.”

In Middle East news, Ashley Deeks noted the serious problem under the U.N. Charter with trying to establish “safe zones” in Syria. And J. Dana Stuster provided the “Middle East Ticker.”

Meanwhile, Charley Snyder and Michael Sulmeyer assessed a purported draft of President Trump’s first executive order on cybersecurity, and examined some of the important provisions of the FY 17 NDAA as they apply to DoD cyber operations. Caroline Lynch summarized the high-level issues that Congress can address in ECPA reform besides the warrant-only standard.

Stewart Baker and Zachary Schreiber explained that Section 14 of the Trump “Interior Security” executive order seems to be aimed at rolling back the excesses of the Ford administration. Carrie Cordero described how appointing members to the Privacy and Civil Liberties Oversight Board would be an easy win for the Trump administration.

Paul Rosenzweig flagged the New York Times report on the hacking of the Czech Foreign Ministry as potentially having been perpetrated by Russia, while Arun Mohan Sukumar described what the Russian hacking of the U.S. election means for the rest of the world. Samuel Cutler reassured sanctions-watchers that Trump has not relaxed Russia sanctions.

Susan published a new Aegis Series Paper on “The Elephant in the Room: Addressing Child Exploitation and Going Dark.”

Paul Rosenzweig flagged Laura Donohue’s new book book and Joel Brenner’s review of it, both on the future of foreign intelligence. And Stewart Baker posted the Steptoe Cyberlaw Podcast: An Interview with Corin Stone:

Shannon Togawa Mercer reported that “Brexecution” can begin now that the British Parliament has voted to give Prime Minister Theresa May the power to invoke Article 50. David Bosco asked whether the ICC’s decision to pause its investigation into American behavior in Afghanistan was Trump-induced.

Luca Marzorati previewed the argument in John Doe v. Federal Republic of Ethiopia that the Foreign Sovereign Immunities Act gives state-sponsored hackers immunity, while Emma Kohse discussed the history and current state of the ATS suit Salim v. Mitchell brought against two CIA contractors.

And last but not least, Ben wrote a note to our new readers, including the great Ira Glass of This American Life, welcoming them to the site.

And that—big, deep breath—was the week that was.

Jordan A. Brunner is a graduate of the Sandra Day O’Connor College of Law at Arizona State University, and was a national security intern at the Brookings Institution. Prior to law school, he was a Research Fellow with the New America Foundation/ASU Center for the Future of War, where he researched cybersecurity, cyber war, and cyber conflict alongside Shane Harris, author of @War: The Rise of the Military-Internet Complex. He graduated summa cum laude from Arizona State University with a B.S. in Political Science.

Subscribe to Lawfare