The Week That Was: All of Lawfare in One Post

Daniel Byman considered the potential impacts of Israel’s recent military operation in Jenin to target a militant group’s operations center.

Jon Hoffman discussed President Biden’s continued financial support to Egyptian President Abdel Fattah el-Sisi despite promises on the campaign trail to end the Trump-era practice of “blank checks.” He argued that the U.S.’s strategic justifications for maintaining the status quo in Egypt are flawed, concluding that the Biden administration should sever ties with the Egyptian president.

Lee C. Buchheit and Paul Stephan examined the REPO Act, which enables the president to confiscate frozen Russian assets and use them to benefit Ukraine. They argued that the new legislation is flawed in taking a permissive approach to the confiscated funds and attempting to preclude judicial oversight of the confiscations. 

Kathleen Claussen and Timothy Meyer discussed the new U.S.-Taiwan trade agreement and the four major complications it raises for U.S. trade and foreign policy.

Patrick Hulme and Matthew Waxman analyzed the tensions between war powers and alliances in the context of the War Powers Resolution reform. They argued that those in favor of strict legislative checks on war powers and strong alliances must close the commitment gap in order to preserve the U.S.’s clear military commitment to its allies. 

On Rational Security, Scott R. Anderson sat down with Quinta Jurecic and Alan Z. Rozenshtein to discuss this week’s big national security news, including Israel’s military operation in Jenin, a Louisiana federal judge’s order to the Biden administration over First Amendment protected speech on social media, Indian President Narendra Modi’s meetings with Chinese and Russian leaders, and more. 

In this week’s installment of Lawfare’s Foreign Policy Essay series, Tobias Ide discussed how natural disasters influence foreign policy. He concluded that climate-related disasters affect the dynamics of most armed conflicts, deescalating some while escalating others. 

Katherine Pompilio shared the U.S. Department of State’s After Action Review on Afghanistan. The review is intended to understand the United States’s military actions in the country during its 20-year long military occupation, as well as offer recommendations for how the department can better prepare for similar situations in the future. 

On the Lawfare Podcast, Anderson sat down with Brandon Van Grack and Assistant Treasury Secretary for Investment Security Paul Rosen to discuss the Committee on Foreign Investment in the United States process, its recent changes, and potential challenges for U.S. policymakers and the businesses with which they interact. This is the first episode in a new Lawfare Podcast series, “The Regulators,” co-sponsored by Morrison Foerster.

Gia Kokotakis shared a presidential policy memorandum (PPM) and a national security memorandum, both of which were recently declassified. The PPM tightened the conditions under which drone strikes may be used, and the national security memorandum gave new guiding principles that shift U.S. counterterrorism strategy away from “nation-building efforts in the name of CT” and toward a more restrained approach centered around collaboration with local authorities. 

On Chatter, David Priess sat down with Ethan Scheiner to discuss the relationship between hockey and politics, the origins of the game, its Cold War era implications for international relations, and more. 

Jake Laperruque analyzed the Biden administration’s objections to FISA 702 reform, ultimately finding them lacking. He concluded that substantial reforms will prevent the government from using FISA 702 to violate civil rights and civil liberties while still effectively guarding against foreign actors and cyberattacks. 

Kokotakis shared a ruling by the DC Circuit Court upholding but narrowing the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA). The court found that neither § 2421A of FOSTA nor its amendments to the Trafficking Victims Protection Act of 2000 violate the First or Fifth Amendments, and they also found that FOSTA is not overbroad if a key provision is read in a criminal law context. 

John Sullivan Baker and Brandon Broukhim analyzed the recent Supreme Court ruling in Moore v. Harper in which the Court largely rejected the “independent state legislature” theory and found that state courts have the ability to review regulations on federal elections. 

Kokotakis shared a judgment and memorandum from the U.S. District Court for the Western District of Louisiana granting a preliminary injunction in part in the case of Missouri v. Biden but also denying the states’ request to certify the case as a class action lawsuit. 

On the Lawfare Podcast, Jurecic and Molly Reynolds sat down with Mike Stern and Eric Columbus to expand on their previous discussion of a former Vice President Mike Pence’s subpoena by a federal grand jury. With updated details about the subpoena, they discussed Pence’s argument, the court’s decision, and how this affects the Jan. 6 investigation more broadly.

On the Lawfare Podcast, Roger Parloff sat down with Benjamin Wittes and Peter Strzok to discuss the similarities and differences between the investigation into Hillary Clinton’s emails and former President Donald Trump’s mishandling of classified documents at Mar-a-Lago.

Christy Lopez discussed the Civil Rights Division of the Justice Department’s reports of its investigations into the Minneapolis Police Department and the Louisville Metropolitan Police Department. She argued that the division’s demonstrated shift away from pattern-or-practice enforcement of police misconduct reflects the possibility for a new era in police reform. 

Mikołaj Barczentewicz discussed the Digital Markets Act’s mandate that the largest digital-messaging services become interoperable. He examined how interoperability may carry significant security risks, concluding that the mandate should either be implemented in a way that does not jeopardize the privacy and personal data protection of internet users, or it should not be implemented at all. 

On the Lawfare Podcast, Rozenshtein sat down with Tim Wu to discuss his experience as Special Assistant to President Biden for competition and tech policy, concerns about AI’s existential risks, and making sure AI serves society’s interests over those of the private sector. 

And Jack Goldsmith shared the Summer 2023 supplement for Bradley, Deeks, & Goldsmith, Foreign Relations Law: Cases and Materials (7th ed. 2020) that covers foreign relations law issues implicated by U.S. actions in response to Russia’s invasion of Ukraine, the Biden administration’s reversal of various Trump-era foreign policies, and more. 

And that was the week that was.