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The Week that Was: All of Lawfare in One Post

Jordan Brunner

Saturday, February 11, 2017, 7:53 AM

Yes, this week, the Ninth Circuit decided to temporarily leave in place the nationwide injunction on President Trump’s ban on entry to the United States from seven Muslim countries. And, yes, the president then tweeted about Lawfare. But we were actually publishing Lawfare before those things happened. Here’s the rundown.

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Quinta Jurecic posted the Lawfare Podcast, featuring Jack Goldsmith and Marty Lederman’s debate over the actions of former Acting Attorney General Sally Yates.

</center> Andrew Kent <a /articles>examined</a> when heads of executive departments can refuse White House orders. Nora Ellingsen <a /articles>delved</a> into the empirical data on who terrorists are and how they relate to assumptions in Trump’s refugee executive order. Lisa Monaco <a /articles>presented</a> the dangers of turning inward in response to transregional threats faced by United States faces. Jordan Brunner <a /articles>highlighted</a> how President Trump’s controversial views on refugees and climate change are linked to the security issue of climate refugees. Samuel Bray <a /articles>presented</a> the case against national injunctions by federal courts. Elizabeth McElvein <a /articles>highlighted</a> the deep divisions in popular opinion over Trump’s refugee ban. Jack Goldsmith <a /articles>argued</a> that either President Trump wants his refugee ban executive order to be struck down, or that White House Counsel Donald McGahn is incompetent. Susan Hennessey <a /articles>provided</a> the tip that journalists should look into threats against federal judges following Trump’s tweets. And Andrew Keane Woods <a /articles>examined</a> the brief filed by over ninety Silicon Valley firms against Trump‘s refugee ban. Quinta <a /articles>posted</a> the recording of the Ninth Circuit oral argument from Washington v. Trump, while Carrie Cordero <a /articles>outlined</a> a few quick thoughts on making national security arguments in court based on the Trump case. Peter Margulies <a /articles>dissected</a> the government’s arguments before the Ninth Circuit, and <a /articles>described</a> different facets of the Ninth Circuit’s examination of the refugee ban. After the unanimous decision came down, Quinta also <a /articles>flagged</a> the decision in Washington v. Trump, Emma Kohse <a /articles>summarized</a> it, and Benjamin Wittes <a /articles>reviewed</a> the two big questions at issue in the Trump case, and how they were handled by the Ninth Circuit. This latter piece is what triggered the now <a href="https://twitter.com/realdonaldtrump/status/830042498806460417">infamous tweet</a> from President Trump. Meanwhile, Curtis Bradley and Neil S. Siegel <a /articles>raised concerns</a> that Trump may use blame-shifting after an attack to weaken the judiciary and the media, while Jane Chong <a /articles>provided</a> an explanation for why the Ninth Circuit avoided statutory and constitutional questions in the Trump case. Peter <a /articles>described</a> the path forward that the government should now take on the executive order. And Jessica Brandt <a /articles>examined</a> what Congress’s role is in the debate over the order. A few other executive orders got airtime this week. Bobby Chesney <a /articles>annotated</a> the latest draft of Trump’s executive order on Guantanamo detention, while Jack <a /articles>explained</a> the practical need for an ISIL AUMF based on the draft. Quinta <a /articles>flagged</a> the Trump administration's three new executive orders on law enforcement, which Rick Houghton <a /articles>summarized</a>. Paul Rosenzweig <a /articles>provided</a> a revised draft of President Trump’s executive order on cybersecurity that he received from three different sources. And Charley Snyder and Michael Sulmeyer <a /articles>highlighted</a> some issues from DoD’s memo exempting cyber from Trump’s hiring freeze. Quinta <a /articles>flagged</a> the livestream of the Texas Law Review symposium on the Tallinn Manual 2.0 shortly before its release to the public by the Atlantic Council. Jane Chong <a /articles>flagged</a> the video of the book launch of the Manual, while Andrew Keane Woods <a /articles>focused on</a> Tallinn Manual 2.0’s application of the law of state sovereignty to cyberspace. Paul <a /articles>offered</a> some bits and bytes for consumption. Stewart Baker <a /articles>posted</a> the Steptoe Cyberlaw Podcast: Thigh-High Boots and Defense Dominance. <center> <iframe width="450" webkitallowfullscreen="" style="border: none" src="//html5-player.libsyn.com/embed/episode/id/5064106/height/90/width/450/theme/custom/autonext/no/thumbnail/yes/autoplay/no/preload/no/no_addthis/no/direction/backward/no-cache/true/render-playlist/no/custom-color/87A93A/" scrolling="no" oallowfullscreen="" msallowfullscreen="" mozallowfullscreen="" height="90" allowfullscreen=""/> </center> Lisa Daniels <a /articles>summarized</a> In re Search Warrant No. 16-960-M-01 to Google. Susan Landau <a /articles>flagged</a> a paper she co-authored in the Harvard Journal of Law and Technology on electronic surveillance law. And Michael Linhorst <a /articles>described</a> the rejection by the FISC of the claim that the public has a First Amendment right to court decisions about bulk data collection. Susan <a /articles>placed</a> the report that Michael Flynn discussed sanctions with Russia within the context of past investigations and reporting. Russian interference and connections to the election were a topic of discussion for the Rational Security gang in an episode featuring Senator Chris Coons (D-DE). Benjamin Wittes <a /articles>posted</a> the Rational Security podcast: The “Guess Who’s Coming to Dinner” Edition, complete with an amusing photo of Susan and a delicious taco bowl. <center> <center><iframe width="640" webkitallowfullscreen="" style="border: none" src="//html5-player.libsyn.com/embed/episode/id/5068490/height/90/width/640/theme/custom/autonext/no/thumbnail/yes/autoplay/no/preload/no/no_addthis/no/direction/backward/no-cache/true/render-playlist/no/custom-color/87A93A/" scrolling="no" oallowfullscreen="" msallowfullscreen="" mozallowfullscreen="" height="90" allowfullscreen=""/></center> </center> Lisa Daniels and Ed Stein <a /articles>provided</a> a backgrounder on a bill introduced to regulate the president’s ability to appoint advisors to the National Security Council and the NSC Principals Committee. Ed also <a /articles>examined</a> whether President Trump could levy sanctions against the Muslim Brotherhood and Jillian Schwedler <a /articles>highlighted</a> the folly of designating the Muslim Brotherhood as a terrorist organization. Looking farther abroad, Julian Ku <a /articles>explained</a> that Secretary of State Rex Tillerson did not actually call for a blockade of China’s South China Sea Islands, and Chris Mirasola <a /articles>commented</a> on the Trump administration’s push of the reset button in the Asia-Pacific. Quinta <a /articles>explored</a> the implications that Trump’s response to the Quebec terrorist attack has for the CVE program. Stephanie Leutert and Savitri Arvey <a /articles>examined</a> what Mexico’s next moves might be in light of Trump’s recent actions. And Iain Henry <a /articles>described</a> the slowly changing reality of the U.S.-Australian alliance. Elena Chachko <a /articles>provided</a> a primer on legislation in Israel that purports to “legalize” settlements in the West Bank, and Yishai Schwartz <a /articles>examined</a> the history of the Amona settlement and the new settlements law. J. Dana Stuster <a /articles>updated</a> the Middle East Ticker. In the Foreign Policy Essay, Carol Saivetz <a /articles>examined</a> what Russian President Vladimir Putin might want from a bargain with President Trump. Barrie Sander <a /articles>reviewed</a> Anti-Impunity and the Human Rights Agenda, edited by Karen Engle, Zinaida Miller, and D.M. Davis. Ben and Susan <a /articles>assured</a> those concerned that Rick Ledgett’s retirement from the NSA was not a political protest. Jane <a /articles>offered</a> some questions and answers to more productively frame the idea of a “Reichstag fire” happening here in the United States. And Jonathan Rauch <a /articles>explored</a> the lessons he learned in writing his article for the Atlantic, “Containing Trump.” And that was the week that was.

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Jordan Brunner

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.

The Week that Was: All of Lawfare in One Post

Jordan Brunner

Jordan Brunner

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