The Fortnight that Was: All of Lawfare in One (Very Long) Post

Because of the Thanksgiving holiday, Lawfare skipped our usual “The Week That Was” post last week. To make up for it, we present to you “The Fortnight That Was,” which includes posts made since late November. About two weeks ago, CNN broke the news that Secretary of Defense Chuck Hagel was stepping down from his post “under pressure” from the White House. Here is the video of the announcement itself. In response to widespread speculation that Secretary of Homeland Security Jeh Johnson was being considered for the position, a point that is moot now, Paul urged him to stay put. That Johnson will remain at DHS, we attribute entirely to the power of Paul's argument. Wells carried the news that President Obama nominated Ashton Carter to be the next Pentagon chief. Jack analyzed Senator Paul’s proposed Declaration of War (and AUMF) against the Islamic State. He also took a look at Bruce Fein’s “revealing” defense of Senator Paul’s draft. Ashley Deeks took a look at developing U.S.-Turkish discussions for a buffer- or no-fly zone to protect Syrian civilians. Concerning the immigration imbroglio, Jack asserted that the important issue is not the President’s action, but rather, whether or not he has changed sub-constitutional norms and understanding. Peter Margulies argued that President Obama’s action and the OLC’s unconvincing legal defense injured our constitutional framework. And Ben noted that if you want to better understand the hubbub over the President’s immigration decision, the Swiss Coat of Arms might be a good place to start. Ryan Vogel analyzed the recent decision by the ICC prosecutor to advance its examination of US detention policies in Afghanistan. Sean Mirski examined the ongoing Rahmatullah saga. Also, Bobby looked into President Obama’s recent decision to expand the set of circumstances in which the US military might use force in Afghanistan during 2015. Cody noted that Senator Dianne Feinstein intends to introduce drone safety legislation in order to “protect US airline passengers and US airspace.” Relatedly, Wells analyzed the Wall Street Journal’s analysis of the FAA’s draft rules for the commercial use of small drones. Rachel Brand had a piece of advice for the NSA: to stop saying the agency applies the Fair Information Practice Principles. Wells noted that Senators Leahy and Cornyn joined others in expressing concern over the CIA’s proposed e-mail destruction policy. I linked to a live Q&A that featured the NSA’s Civil Liberties and Privacy Director, Rebecca Richards. Carrie Cordero weighed in on the encryption and “going dark” debate. Mieke Eoyang shared a proposal for reform of the legal authorities under which NSA collects communications content from U.S. technology companies. Alex Ely provided a quick summary of the oral argument in In Re Directives, the FISC litigation from a few years back under the Protect America Act. Following up on Charlie Savage’s scoop in the New York Times that the Section 215 sunset provision is not quite as a firm as people had thought, Ben remarked on the oddity of the Patriot Act’s sunset provisions and what it might mean for the USA Freedom Act debate. Diane Webber analyzed whether or not confiscating passports is a good way to stop citizens from joining jihadists in Syria and Iraq. She later provided an update on the topic that focused on the UK’s new counter-terrorism bill. Ben gave his take on the recent Elonis case at the Supreme Court and asserted that “threats are beyond the protection of the First Amendment because of their effects on other people.” He later added a further thought on the case based on a recent case of scary threats against a writer he knows. For this week’s Throwback Thursday, I examined the Constitution of the People’s Republic of China and its significance for China’s legal reform drive. Matthew Waxman shared his recent post at the Asia Maritime Transparency Initiative on China’s Air Defense Identification Zone at one year. Paul shared the news that Chinese telecommunications giant Huawei plans to sponsor the Wi-Fi at Fedex Field for the Suite level. I linked to a recent CNAS report that explains and contextualizes China’s cybersecurity strategy. Paul examined the “Cyber Supply Chain Management and Transparency Act,” which aims to provide a different way of enhancing the country’s cyberdefenses. For this week’s Steptoe Cyberlaw Podcast, Stewart Baker brought us an interview with Troels Oerting, who is the head of EC3, Europe’s new cybercrime coordination center. Last week, for the 44th Steptoe Cyberlaw Podcast, Stewart shared an interview with Sal Stolfo, Professor at Columbia University’s Computer Science Department and CEO of Allure Software. For this week’s Foreign Policy Essay, Daniel Byman provided some thoughts on counterterrorism and “blowback.” In last week’s essay, Victor Asal, Richard Legault, Ora Szekely and Jonathan Wilkenfeld explored why some groups might choose to use both peaceful and violent tactics and why analysts should avoid lumping groups into the simple categories of “violent” or “nonviolent.” Last week, the Lawfare Podcast went on a hiatus. However, the week before, the 101st episode featured a debate between Jameel Jaffer of the ACLU, Bob Litt of the DNI, and William Banks of Syracuse University law school over the Foreign Intelligence Surveillance Act. Phil Walter argued that just like Congress mandates legislative oversight over spending money, it should also demand oversight over risking Americans’ lives in combat. You might not think that labor relations are related to chemical security, but Paul explained how how the two are intimately connected. Wells linked to the news that the White House is proposing new funds for police body cameras. Jack ruminated on the sad collapse of the New Republic. Ben provided a further thought on the influential magazine’s “demise.” Paul shared a not-so-subtle metaphor for Congress that he spotted while walking around Capitol Hill. For last week’s Throwback Thursday, I amalgamated presidential thanksgiving decrees from over 250 years to make one ultimate, time-bending ode to the holiday. Finally, Ben shared a novel method of safely deep frying a turkey. And that was the fortnight that was.