The Week That Was: All of Lawfare In One Post

This week, Ben welcomed three truly remarkable additions to Lawfare: Orin Kerr, Gabriella Blum, and Ingrid Wuerth. Public scrutiny of espionage continued as the digital transformation of a once cloak-and-dagger spy game became more visible. Ingrid discussed legal matters for foreigners spying under the guise of diplomatic status, perhaps a simpler matter to address than the German perception of the U.S. as “arrogant and indifferent” to privacy. Ashley discussed the potential costs and benefits of a more rigorous intelligence collection agreement between Berlin and Washington. Jack opined in Security States that the intelligence committees (and potentially even the White House) had at the very least some sense of what the NSA collected---and pointed out an LA Times article germane to his opinion. In light of revelations that the U.S. used Australian embassies to house collection equipment and personnel, Ingrid gave us further analysis of the legal status of NSA technicians operating out of a third-party's diplomatic outpost. The declassification fairy visited us again this week, leaving 10 documents topical to congressional notification of 215 collection, as well as a little treat about experimenting with locational data (h/t Senator Wyden and his questions). Ben, Matt, Lauren, and Sean all contributed on an extensive summary and analysis of the cache. Ritika linked to the HPSCI hearing on FISA reform, while Wells noted that the SSCI passed the FISA Improvements Act of 2013 by an 11-4 vote. Orin stepped back to consider the argument of Just Security's David Cole, who suggested that law should protect the privacy of all individuals, not just Americans. Orin gave us three reasons to question Mr. Cole’s rather bold assertion. Jamshid Muhtorov, a detained former member of the Islamic Jihad Union, received notification that information collected under Section 702 of the FISA will be used in his upcoming trial for material support to terrorism. Raffaela noted the relationship between the notice and Clapper v. Amnesty International. While the press saw notification as momentous, perhaps even forcing the SCOTUS to review 702, Orin was skeptical of these opinions and explained why. Bobby noted a drone strike against al Shabab bombmaker Ibrahim Ali in Somalia and detailed the relevant legal considerations for targeting him under the 2001 AUMF. Ritika also noted the response of Human Rights First’s Gabor Rona to her drone strike meta-study. Matt W. brought attention to Louise Arbour’s speech analyzing the substantial shortcomings of the ICC and R2P. In the Tsarnaev case, Zach detailed the response of the government to the defense's motion to vacate special administrative measures imposed upon Tsarnaev and his legal team. Regarding Aamer v. Obama, the force-feeding case, Jane pointed out a factual development:  the four petitioners are no longer actually being force-fed. She followed up with an explanation of why the detainees claim their argument is not yet moot. Security States:

• Wells: "History's Most Consequential Terrorism Trial Still Isn't Happening"
• Jack: "White House and Congress Didn't Know the NSA Was Spying on Allies? I Doubt It"
• Paul: "The NSA Doesn't Need Wholesale Reform, Just Greater Oversight"
• Jane: "We Need Strict Laws If We Want More Secure Software"
• Jane: "The Security Burden Shouldn't Rest Solely on the Software User"

Responding to Faiza Patel’s assertion that the UN’s plan to remove Syria’s CW would violate the Chemical Weapons Convention (CWC), Jens Iverson of the ‘Jus Post Bellum’ project at the Grotius Centre for International Legal Studies gives a thoughtful take on why---given the historical context, treaty text, and the unique circumstances---it would not violate the CWC. Paul noted that not only does heathcare.gov have major availability issue, but it, just like every other site, suffers from unrelenting cyber threats. And lastly, please do give Wells your opinion on finding a sustainable and effective method for covering the Military Commissions---and for keeping BG Richard Gross and his staff's readership. And that was the week that was.