Today's Headlines and Commentary

The Supreme Court stayed the Ninth Circuit’s September 7 decision in Hawaii v. Trump, which exempted refugees with assurances from U.S. resettlement programs from Executive Order 13780, the so-called “revised travel ban,” the Washington Post reported on Tuesday. At issue was the interpretation of the Supreme Court’s June order that allowed partial implementation of the travel ban but exempted people with “bona fide” relationships to persons within the U.S. Although the Supreme Court sided with the Trump administration in blocking the Ninth Circuit’s ruling, it is unclear whether the case will be moot by the Court’s scheduled oral argument on the merits on October 10, as the ban will expire before the Court hears arguments.

The Trump administration is considering reducing the number of refugees to be admitted to the country next year to fewer than 50,000, which would be the lowest level in 37 years, the New York Times reported on Tuesday. National Security Council officials are weighing lowering the annual quota of refugee admissions to 40,000, less than half of the 110,000 quota set under President Obama for 2016. White House adviser Stephen Miller has pressed to reduce the ceiling further. The Department of Homeland Security, which favors deep cuts in refugee admissions, has been embroiled in an intense debate with the State and Defense Departments, which oppose any extreme reduction. By law, the administration must decide by the start of the fiscal year on October 1.

In early 2017, Russia delivered a plan to the Trump administration for a full normalization of relations with the U.S., BuzzFeed News reported. Released documents detailed a Russian proposal to senior American officials for the restoration of numerous diplomatic, military, and intelligence channels on issues such as cybersecurity, the Iranian nuclear deal, the conflict in Ukraine, and the war in Afghanistan. U.S. officials downplayed the proposal, saying that only a few of the offered meetings actually took place. Relations with Moscow have worsened following new U.S. sanctions on Russian officials and the forced ejection of diplomatic personnel in both countries.

Defense analysts said that North Korea has resumed work at its underground nuclear testing site, the New York Times reported on Wednesday. Satellite images showed that new vehicles and mining carts were present at the underground nuclear test site in northeastern North Korea, where Pyongyang set off its largest nuclear explosion to date on September 3. Analysts also said that the yield from that bomb may have been much larger than initially estimated, as much as the equivalent of 250 kilotons of TNT. These data appeared to corroborate North Korea’s claim that it had tested a hydrogen bomb. In response to new sanctions from the U.N. Security Council, North Korea’s foreign ministry said that the sanctions would only strengthen the regime’s resolve to accelerate its nuclear program.

The Senate Intelligence Committee is likely to call on representatives from Facebook to publicly testify about Russia’s activities on the social media platform during the 2016 election, the Wall Street Journal reported on Tuesday. Chairman Richard Burr and Ranking Member Mark Warner confirmed separately that they are in discussions with each other about holding a hearing with Facebook and other social media companies’ representatives regarding the role of foreign actors in election advertising. Facebook disclosed last week that it had identified hundreds of fake accounts linked to Russia that purchased divisive political ads. Senator Warner said that it may be necessary for Congress to explicitly extend campaign finance laws to cover social media.

The White House press secretary said that the Justice Department should consider prosecuting former FBI Director James Comey for allegedly illegal activities during and after his time in office, the Washington Post reported. Press Secretary Sarah Huckabee Sanders alleged during a briefing that Comey had likely broken the law but also said that it was not the White House’s role to encourage a prosecution of Comey. Sanders suggested that Comey should be investigated for leaking information about President Trump. Comey has said that he did not break any laws by disclosing memos he wrote about meetings with Trump and asking a friend to deliver an unclassified memo to the New York Times.

Former National Security Advisor Michael Flynn refused another request from the Senate Intelligence Committee to appear as a witness in its Russia investigation, CNN reported on Wednesday. Flynn declined to comply with a Senate subpoena in May, citing his Fifth Amendment rights. He declined again recently. Flynn resigned from the White House in February after the Wall Street Journal revealed that he had an undisclosed meeting with the now-former Russian ambassador. He offered to testify in exchange for immunity in March, but both the House and Senate Intelligence Committees declined to accept the offer. Separately, sources within the Trump administration revealed that Flynn backed a for-profit nuclear power program in the Middle East within the administration after being paid by its backers, Politico reported on Tuesday. Flynn failed to disclose his consulting work for a private company while he promoted that company’s plan to build nuclear reactors across the Middle East to strengthen ties between the U.S. and Arab allies. He is currently under investigation not just for his ties to Russia but also his undisclosed business work while working for the Trump campaign and subsequently, in the White House.

Guatemala’s legislature overwhelmingly voted to preserve President Jimmy Morales’s immunity from prosecution in a campaign finance investigation that has rocked the country’s political system, the New York Times reported. The vote prevents the investigation into widespread corruption in political parties and campaigns from looking into Morales directly. However, Morales’ hand was severely weakened when Guatemala’s constitutional court prevented him from expelling the head of a U.N. anticorruption panel two weeks ago. Analysts said that the vote was an attempt by politicians to limit the investigation’s scope.

Israeli Prime Minister Benjamin Netanyahu said that Israel supports the establishment of an independent Kurdish state, Reuters reported on Wednesday. Netanyahu’s statement came as the head of Iraqi Kurdistan said it would press on with an independence referendum despite a vote from Iraq’s parliament that rejected the vote. The United States and Turkey have both asked the Kurds to postpone the vote in the interest of stabilizing Iraqi politics. Israel has had a close relationship with Kurdish populations in the Middle East for decades; it sees the Kurds as a buffer against hostile Arab states. However, Netanyahu also said that Israel considers the Turkey-based Kurdistan Workers Party (PKK) a terrorist group, the same position as Turkey, the U.S., and the E.U.

European Commission President Jean-Claude Juncker said that he will propose the establishment of a pan-European cyber security agency, the AP reported on Wednesday. Juncker said in advance of the annual State of the European Union Address that he will propose that the E.U.'s 28 member states set up a cybersecurity agency to better defend against attacks that threaten the health of democracies worldwide.

ICYMI: Yesterday, on Lawfare

Jack Goldsmith highlighted his essay in The Atlantic, “A Trump Damage Assessment”

Peter Margulies flagged the Supreme Court’s stay on the Ninth Circuit’s order to admit refugees with assurance of sponsorship in the United States.

Merritt Baer and Chinmayi Sharma analyzed the legal obligations Equifax may have to victims of the massive breach of its databases.

J. Dana Stuster posted the Middle East Ticker, covering the status of the Iran nuclear deal, fighting around the remnants of the Islamic State, and the Qatar-Gulf States Crisis.

Alex Wagner and Richard Eisenberg argued that the Trump administration’s ban on transgender military service members fundamentally misunderstands the history of the military’s policies on the matter.

Stewart Baker posted The Cyberlaw Podcast, featuring a debate about the “upstream” collection program under FISA Amendments Act Section 702.

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