The Week that Was: All of Lawfare in One Post

As the battle over the USA Freedom Act heated up in the Senate, Harley Geiger of the Center for Democracy and Technology (CDT) outlined just how much would a sunset of Section 215 change the surveillance debate. Later, Cody informed us that, while the legislative debate spiraled and Senator Rand Paul filibustered, the Justice Department circulated a memo to Congress saying that the NSA would begin rolling back its telephony metadata bulk collection program by Friday, May 22, in order to comply with the law. Midweek, Ben updated us on the legislative state of play regarding the reauthorization of Section 215 of the Patriot Act, arguing that the Senate should pass the USA Freedom Act because failure to continue the current authorities should be “unthinkable.” That same day, Wells linked to an opinion piece by Rachel Brand, a member of the Privacy and Civil Liberties oversight board, discussing the facts underlying (and sometimes obscured by) the debate over Section 215. Tim Edgar explained how the posturing of Senators Rand Paul (R-KY) and Mitch McConnell (R-KY) might upend meaningful surveillance reform, preventing either of them from achieving their stated goals, while undermining critical U.S. government security tools. Disagreeing with them all, Bruce Schneier posted comments by the ACLU’s Chris Soghoian who argued that the current debate over Section 215 doesn’t matter that much. Cody tipped us off to the newly released DOJ Inspector General report reviewing the FBI’s use of Section 215 orders from 2007 through 2009, which Bruce used to make this point: there’s just so much more being collected that the metadata program isn’t that big of a deal. On Tuesday, Herb Lin offered his comments on Secretary of State John Kerry’s speech yesterday in Korea calling for “an open and secure internet,” examining exactly what Kerry meant in outlining the principle that “no country should intentionally damage another country’s critical infrastructure through online means.” Stewart Baker shared the latest episode of the Steptoe Cyberlaw Podcast, which features an interview with Dan Geer and a host of predictions about the future of the 215 metadata program. Paul brought us the news that Fadi Chehade, the CEO of ICANN, announced his intention to step down as of March 2016. Don’t know what the Logjam Vulnerability is or how the NSA may have used it to break VPNs? Bruce Schneier explains. Ben posted the video from FBI Director James Comey’s remarks at Georgetown Law’s Cybersecurity Law Institute. It’s worth a watch: let’s just say he doesn’t exactly say what some outlets have suggested. Ben and Lawfare contributor Jodie Liu released their latest Brookings paper on “The Privacy Paradox: The Privacy Benefits of Privacy Threats,” which explores how the technologies we so often fear will undermine our privacy have also enhanced them in ways we often fail to consider. Jack shared a free new massive open online course (MOOC) from the University of Adelaide called Cyberwar, Surveillance, and Security, taught by Melissa de Zwart, Dale Stephens, and Rebecca LaForgia. Jack himself has a brief feature in the course.] Ben outlined an “approach to ameliorating press-intelligence community tensions over classified information, suggesting the creation of a “cleared intermediary, chosen by the media organization, who can hear a full presentation by the government on its concerns.” I reported that the Office of the Director of National Intelligence had released a new set of documents that were taken during the raid on Osama bin Laden’s Abbottabad compound in 2011. The release contains a list of non-classified, English language reading material found in the compound, as well as 103 new declassified documents. Noting his subject's eight-month silence, in this week’s Foreign Policy Essay, Brookings Senior Fellow Bruce Riedel asks, “where is al Qaeda leader Ayman al Zawahiri?” As news broke that the United States special forces had executed  a raid of an ISIL compound in Syria, killing ISIL leader Abu Sayyaf and capturing his wife, John Bellinger explored some of the domestic and international law questions raised by the raid. Later in the week, Yishai Schwartz updated us on the annual defense authorization bill, unpacking the language regarding the military detention facility at Guantanamo Bay, and confirming that in fact, no deal had been reached on closing the facility. Yesterday, Wells shared Guantanamo Bay detainee Mukhtar Yahia Naji al Warafi’s reply brief, which argues that since President Obama has announced the end of the United States’ war in Afghanistan, he should be released. I alerted readers that the Justice Department indicted six Chinese nationals on charges of economic espionage and theft of trade secrets. Philip Wallach challenged Lawfare readers to evaluate the “Hard Financial Crisis Choices,” arguing “if the question is how emergencies change the scope for government action, how legitimacy is achieved by crisis responders, or what the rule of law means in times of crisis, then adding financial crises to national security crises expands the material available for analysis.” Ben commented on some statements made in Iowa by potential presidential candidate Senator Lindsey Graham (R-SC) in relation to drone strikes. For the Lawfare Book Review, Matthew Sprinkel reviewed Living Weapons: Biological Warfare and International Security by Gregory Koblentz. Finally, episode #123 of the Lawfare Podcast featured an interview with Andrew March, Associate Professor of Political Science at Yale University, on the Islamic law of war. And that was the week that was.