The Week That Was: All of Lawfare in One Post

This week Lawfare focused on the debate over surveillance reform. Jane offered us a peek at a New America Foundation Report that found claims about the efficacy of the NSA's bulk metadata collection program to be “overblown.” And Paul linked to an article by David Gioe analyzing the deterrent effect of Snowden’s leaks on future intelligence activities. At long last, Ben concluded his “Reviewing the Reviewers” series with an endorsement of the President’s Review Group’s ("PRG") recommendations for protecting what we do collect, but once again noted a lack of actionable specifics. He then followed his detailed series with a 40,000-foot “final thought” that praised the report’s boldness, but found that the Group bit off far more than it could really chew. He also suggested that the report’s overreach will create a political headache for the president. In honor of Ben’s completing his series, I summarized all of Lawfare’s reactions to the President’s Review Group Report, and linked to the live-stream of PRG members’ testimony in front of the Senate Judiciary Committee. The PRG wasn’t the only voice being heard on FISA reform. Wells drew our attention to former FISC Chief John Bates’ letter to the Senate Intelligence Committee presenting the “views of the Judiciary” on the issue. Bates explicitly pushed back against some pending reform proposals. The loudest voice on surveillance matters was, of course, President Obama’s. Ben gave us some preliminary “notes” in advance of the President’s speech, predicting that the President wouldn’t be announcing any revolutionary changes but wondering which audience the President would try to reassure. During the speech itself, Ben linked to the livestream and Ritika posted the text to save us the time of actually listening to the whole thing. Ben also linked to the Presidential Policy Directive that was released in conjunction with the speech. As soon as the President was finished speaking, the analysis began. Ritika announced a Brookings panel providing immediate reactions.  Wells posted some thoughts on the speech; Joel Brenner did, too.  Wells then moderated a Podcast discussion of the President's address with Ben, Bobby and Carrie.  The government followed the address with some releases of its own: Ritika flagged the DNI's statement regarding the President's speech; Wells noted the DNI's further declassification of FISC documents. Of course, we don’t only post about intelligence reform these days. Lawfare also brought you an extremely positive review of Afghanistan: A Distant War from the photographer Jean Marie Simon.  And in his foreign policy essay, Dan pointed out that it’s not just outside Sunni fighters pouring into Syria that is creating an ever-expanding sectarian war. In fact, the Shi’ite fighters arriving are better trained and organized than their Sunni adversaries. The Supreme Court will review two key cases regarding the "search incident to arrest" doctrine, as Paul pointed out in a post. In the realm of international law, John analyzed the diplomatic brouhaha created by the arrest of an Indian diplomat. He found the American government’s approach legal, but ham-handed. John then drew attention to the Supreme Court’s denial of certiorari in Samantar, allowing the Fourth Circuit’s determination of a blanket jus cogens exception to foreign sovereign immunity to stand. John theorized that the Supreme Court declined to hear the case because the facts keep changing---not because they agree with the lower court's ruling---and suggested that the justices may yet revisit the case. Transitioning from immunity to no-fly lists: Jeffrey Kahn analyzed the apparent ruling in favor of the plaintiff in Ibrahim v. Department of Homeland Security. Although it seems like the Judge has ruled that non-nationals have due process rights in challenging their placement on no-fly lists, the actual opinion may remain secret for some time. Ben flagged Greg Miller’s profile of ODNI General Counsel Bob Litt in The Washington Post, and dismissed Miller’s assertion of a contradiction between social progressivism and support for robust intelligence programs.  "One has to be alive to enjoy one’s civil liberties,”  Ben wrote.  Similarly, Jack reacted to a New York Times story about NSA cyper-spying techniques. He noted that even a few years ago, the newspaper would never have published such sensitive material, and suggested that the government has lost much of its moral high-grounqd in condemning Chinese cyber activities. In Guantanamo news, Raffaela previewed detainee Obaydullah’s habeas appeal before the D.C. Circuit. She then provided us with a full play-by-play of the hearing; the panel didn’t seem to be buying the detainee's argument that new evidence made a dent in the District Court’s initial habeas denial. Meanwhile, Wells linked to the D.C. Circuit’s decision in al-Janko v. Gates, which affirmed the district court’s rejection of an ex-detainee’s suit against the government. Wells also brought us another interesting Guantanamo tidbit: 9/11 mastermind Khalid Sheikh Mohammed has penned the first part of a new manifesto, “Statement to the Crusaders of the Military Commissions at Guantanamo.” This installment is titled “Invitation to Happiness.” I don’t know about you, but I am certainly waiting for parts 2 and 3 with bated breath. On the cyber front, Paul reacted to the passage of the Health Exchange Security and Transparency Act of 2014, and found the bill fairly reasonable. He also explained the current free-market state of cyberspace governance and warned against attempts to place the internet under the control of international legal structures. Ben also drew our attention to a series of short essays from the Hoover Institution’s Task Force on National Security and Law, and gave us a sneak preview of his own piece. He also flagged a couple of interesting paragraphs from an article in The Wall Street Journal; it suggested that the Obama Administration is seeking to “restructure” the famous 2001 AUMF. And while we’re discussing limitations on presidential war powers, Ganesh Sitaraman linked to a new essay where he questions the viability of “credibility” arguments as a basis for presidential military action. Finally, Paul notes the most unsurprising headline of the year. And that was the week that was.  And what a week it was.