Lawfare News

The Week That Was: All of Lawfare in One Post

Yishai Schwartz
Saturday, March 22, 2014, 9:55 AM

Let's start with NSA news. This week, attention shifted slightly from from NSA’s domestic 215 program to its foreign collection activities.

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Let's start with NSA news. This week, attention shifted slightly from from NSA’s domestic 215 program to its foreign collection activities. Wells flagged and uploaded witness testimony from PCLOB’s open hearing on NSA’s 702 program, and Ben followed up with links to full video of the event.

Along the way, Ben noted the profound irony in the fact that civil libertarian organizations concerned with the government’s possession of vast amounts of metadata are now responsible for … a court order compelling the government to retain vast amounts of metadata.

He also offered a modest proposal for disincentivizing foreign governments’ industrial espionage efforts: the US ought to simply post a list of offending countries, and then start publishing their nationals’ trade secrets, he argued.

Steward Baker posted the next episode of the Steptoe Cyberlaw Podcast featuring a discussion among the Steptoe crew of NSA, ICANN (for more see Paul’s post on the subject), and European parliamentary machinations on privacy. This week’s interviewee was Dan Novack, a former big-firm litigator now serving as legal analyst at First Look, the Greenwald/Omidyar news service. Ben also posted this week’s Lawfare Podcast, an interview with Foreign Policy’s Shane Harris on NSA, CIA, the SSCI, and more. Snowden, by the way, appeared this past week at TED2014, and was followed shortly by Rick Ledgett, Deputy Director of NSA. Ben posted video of both discussions. Meanwhile, Michael Chertoff contributed a warm tribute to outgoing NSA Chief Gen. Keith Alexander, thanking him for his service and praising his advocacy for, and far-sighted investments in, cyberdefense. Matt argued that secrecy is inhibiting the creation of cyberwar norms, norms that the US ought to shape to its own advantage. He also pointed to some recent statements by NSA nominee Mike Rogers on how the Snowden disclosures may offer an opportunity to begin this norm-shaping in earnest.

And given Angela Merkel’s frequent conversations with Vladimir Putin in the last few days, Ben wondered aloud why tapping the German Chancellor’s phone might be of interest to the United States.

Speaking of Putin, Bobby noted the killing of at least one Ukrainian soldier and explained that in his view, the laws of armed conflict now apply to interactions in the region. Jack discussed Russia’s repeated references to Kosovo as precedent for its actions in Crimea, and suggested that the influence of law and precedent on decisions to use force is actually pretty minimal. And given recent events in Crimea, Wells gave us a taste of the alternative reality being reported in Putin-land, providing us with “Today’s Headlines and Commentaries… in Russia.”

Paul offered some musings about aviation security inspired by the still-missing MH370. And after expressing his own befuddlement over why a pilot should have the capability of turning off the plane’s transponders, Paul posted a response from John Villasenor, who explained that the capability of shutting down electrical systems might be important in cases of fire or malfunction.

Villasenor also forwarded some comments on a new report from the International Centre for Missing and Exploited Children’s digital economy task force, which Ben flagged. The report contains a dozen specific recommendations on how to balance law-enforcement and privacy goals.

In this week’s Foreign Policy Essay, Paul Miller suggested that American focus on the Middle East is related to Evangelical fixations on Israel, and he urged policy-makers to return our focus to areas of strategic interest.

Paul noted the announcement that the US government would be giving up its controlling role in managing the Internet Domain System, and he explained in detail precisely what this change means. He then followed up with some legal concerns, referencing a GAO study questioning the legality of a transfer of authority over IDS from the Department of Commerce to the ICANN.

In Guantanamo news, Wells noted detainee Ali Ahmad al-Razihi’s hearing before the Periodic Review Board and linked to related materials. And Steve argued that the DC Circuit’s decision in Aamer may be even more consequential than previously thought, as the decision may open the door to collateral attack by defendants against military commission trial even before their trials.

Bobby posted a brief tribute to the late Robert Strauss, praising his legacy of putting the public interest before partisanship. He also noted an interesting exchange between Representative Mac Thornberry and Michael Lumpkin on whether the AUMF needs to be revised. And Peter Margulies posted about a FedSoc debate where he argued in favor of extraterritorial application of the ICCPR against Edwin Williamson against Nick Rostow.

And that was the week that was.

Yishai Schwartz is a third-year student at Yale Law School. Previously, he was an associate editor at Lawfare and a reporter-researcher for The New Republic. He holds a BA from Yale in philosophy and religious studies.

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