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The Week That Was: All of Lawfare in One Post

Elliot Setzer
Saturday, March 14, 2020, 11:02 AM

Your weekly summary of everything on the site.

Published by The Lawfare Institute
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As the world grappled with how to respond to the coronavirus pandemic, Margaret Taylor and Benjamin Wittes argued there was no good reason to keep the Capitol open to the public. Bruce Riedel wrote that Mohammed bin Salman’s impulsive policies have been a poor match for dealing with the novel coronavirus in Saudi Arabia, and Amanda Sloat asked whether Trump is right that Britain is handling the COVID-19 outbreak well.

Richard Altieri and Benjamin Della Rocca compiled Lawfare’s biweekly roundup of U.S.-China news, focusing on the spread of coronavirus, as well as unsealed indictments against two Chinese nationals accused of aiding North Korean hackers. Steve Stransky analyzed how cyber attackers are exploiting coronavirus fears.

Jen Patja Howell shared an episode of Rational Security discussing the U.S. response to the coronavirus spread and recent tumult in Saudi Arabia:

Elliot Setzer summarized a House Oversight Committee hearing on the government response to coronavirus. He also shared a livestream of day one and day two of the hearing, as well as the livestream of a House Homeland Security Committee hearing on community perspectives on coronavirus preparedness. William Ford also summarized hearings on federal responses to the coronavirus held by congressional homeland security committees.

Patja Howell shared an episode of the Lawfare Podcast discussing the congressional response to coronavirus:

And Bobby Chesney and Steve Vladeck shared an episode of the National Security Law Podcast discussing local quarantine authority:

Hayley Evans and Paras Shah analyzed an International Criminal Court appeals chamber decision authorizing an investigation into possible war crimes committed in Afghanistan, including those allegedly committed by American forces and Afghan troops. Peter Harrell examined whether the U.S. could sanction the ICC in response.

Key provisions of the Foreign Intelligence Surveillance Act (FISA) are set to lapse temporarily on Sunday after President Trump threatened on Thursday to veto a bipartisan bill to extend them. Charlotte Butash and Margaret Taylor analyzed the House’s bipartisan FISA reform bill, which passed on Wednesday. Quinta Jurecic shared a copy of the draft legislation.

Stewart Baker shared the most recent episode of the Cyberlaw Podcast discussing the NSA’s controversial call detail records program and interviewing Travel LeBlanc, a member of the Privacy and Civil Liberties Oversight Board:

Chesney and Vladeck shared an episode of the National Security Law Podcast, discussing FISA reauthorization and COVID-19:

Baker also shared an episode of the Cyberlaw Podcast featuring an interview with NSA’s former general counsel Glenn Gerstell:

To mark the launch of the official report of the Cyberspace Solarium Commission on Wednesday, March 11, Lawfare shared a series of commentaries from commission authors on various highlights of the report. The Commission is a bicameral, bipartisan, intergovernmental body created in 2019 and charged with developing and articulating a comprehensive strategic approach to defending the United States in cyberspace.

Chesney introduced the series of posts. Benjamin Jensen outlined the concept of “layered cyber deterrence”—the Cyberspace Solarium Commission’s new approach to securing American interests in cyberspace. Erica Borghard discussed how the concept of “defend forward” works to change adversary behavior. Borghard and Mark Montgomery reviewed how the Cyberspace Solarium Commission extends “defend forward” to encompass multiple instruments of power. Borghard and Shawn Lonergan also argued that to defend forward, the U.S. must ensure the Cyber Mission Force achieves the appropriate resourcing, force size and capability mix. Laura Bate, Phoebe Benich, Val Cofield, Karrie Jefferson, Ainsley Katz and Sang Lee summarized the commission's recommendations for strengthening U.S. alliance-building efforts and investing in cyber capacity building. Robert Morgus, John Costello, Charles Garzoni and Michael Garcia argued that U.S. cyber strategy must deny adversaries the ability to degrade the cyber ecosystem or disrupt it in times of crisis. And Madison Creery argued that critical gaps remain in Defense Department weapons system cybersecurity. Jacquelyn G. Schneider asked why cyber talent is such an important and yet challenging obstacle for U.C. cyber strategy. Mark Raymond highlighted that norms are essential to cyber strategy and cyber governance. Jon Lindsay discussed how cyberspace and nuclear weapons are increasingly entangled in dangerous ways that we do not fully understand. Borghard and Lonergan argued that cyber-enabled intellectual property theft from the Defense Industrial Base poses an existential threat to U.S. national security. And Benjamin Bahney and Jonathan Reiber argued that the U.S. government can deepen its operational partnership with the private sector to better defend the U.S. in cyberspace.

Chesney analyzed a speech by the Defense Department’s general counsel on the law of military operations in cyberspace.

Patja Howell shared the most recent episode of the Lawfare Podcast featuring an interview with Joshua Fattal about fighting disinformation with the Foreign Agents Registration Act:

Alan Rozenshtein discussed how Judge Reggie Walton’s ruling demanding in camera review of the unredacted Mueller report underscores how much the Trump administration has squandered the executive branch’s goodwill with the judiciary. Setzer shared the D.C. circuit opinion.

Elizabeth Threlkeld analyzed the two different deals the United States recently made with the Taliban and the Afghan government. And Paul Miller argued that the U.S.-Taliban peace agreement is a lopsided, bad deal for Afghanistan. Pamela Falk and Jacques Singer-Emery analyzed the U.N. Security Council vote in support of the agreement. Setzer shared a livestream of a House Foreign Affairs Committee hearing on the Afghan peace deal.

Taylor examined whether it is time to reform the Federal Vacancies Reform Act.

Rozenshtein argued that the revised EARN IT Act proposes a better process for encryption policy.

Kelsey Clinton analyzed a D.C. Circuit ruling in Committee on the Judiciary v. Department of Justice that the House of Representatives should have access to the redacted grand jury material referenced in the Mueller report.

Preston Lim analyzed a recent Canadian Supreme Court decision allowing corporate liability for international law violations.

Lester Munson shared the most recent episode of the Fault Lines podcast featuring an interview with George Ingram, a senior fellow in Global Economy and Development at Brookings:

Doug Stephens IV summarized the Philippines’s stated intent to depart the U.S. defense pact.

Chesney and Eric Talbot Jensen discussed a speech by Defense Department general counsel Paul Nye defending the legality of the strike the killed Iranian general Qassem Soleimani strike.

Setzer shared a livestream of a House Armed Services Committee hearing on national security challenges in North and South America and a livestream of a House Foreign Affairs Committee hearing on the crisis in Idlib. Setzer also shared a livestream of the House Armed Services Committee hearing on priorities for missile defense and missile defeat programs.

And Patja Howell shared an episode of the Lawfare Podcast featuring an interview with Joseph Nye, professor emeritus and former dean of the Harvard Kennedy School, on his recent book “Do Morals Matter? Presidents and Foreign Policy from FDR to Trump”:

And that was the week that was.

Elliot Setzer is a Knight-Hennessy Scholar at Stanford Law School and a Ph.D student at Yale University. He previously worked at Lawfare and the Brookings Institution.

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