The Week that Was: All of Lawfare in One Post

On Monday, the Third Circuit issued its decision in the potentially landmark case Federal Trade Commission v. Wyndham Worldwide Corporation et al, on the FTC’s ability to regulate private-sector cybersecurity. Paul filled us in on the likely implications of the ruling and concluded that “the FTC now owns cybersecurity in the private sector”—all in all, “an odd result.” Wells also chimed in, discussing what Wyndham will mean for public, as well as private, cybersecurity standards. Might tort law lead to a convergence of public and private standards, or will the two diverge instead?

Steve Slick examined the proposed Cyber Threat Intelligence Integration Center (CTIIC). The House’s effort to legislate on the CTIIC is misguided and harmful, he argues, and the Obama administration and the DNI can help prevent this legislation from passing by releasing the DNI’s status report on CTIIC development.

Nicholas Weaver responded to Ben’s five hard encryption questions with a study of three notable security backdoors: TSA luggage locks, backdoors to telephone systems mandated by the Communications Assistance to Law Enforcement Act, and the NSA’s Dual_EC_DRBG “trap-doored pseudo-random number generator.” All three attempts to implement backdoors have led to serious security vulnerabilities, he points out. The woeful history of backdoors should make us leery of any proposals to implement them anew amidst anxiety over strong encryption.

Wells noted the D.C. Circuit Court of Appeals’ ruling in Obama v. Klayman this Friday. A split three-judge panel held that the suit contesting the NSA’s bulk telephony metadata collection program had not been rendered moot by the USA FREEDOM Act, but voted against providing injunctive relief and instead remanded the case to the lower court.

As the conflict drags on in Ukraine, Thomas Grant brought us a thought-provoking essay on the role of international law in the Russian invasion of Crimea. In his argument, Russia’s activities in Ukraine represent the single greatest assault on the international legal system since the advent of the United Nations. Never before has a member of the United Nations—a permanent member of the Security Council, no less—invaded and annexed territory belonging to a state whose sovereignty and borders it had officially previously recognized.

Also on the topic of flouting international law, Wells noted a new paper by Sean Mirski on China’s case for its jurisdiction over the disputed territory in the South China Sea. While China seeks to throw out the Philippines’ UNCLOS case against Chinese actions in the South China Sea, Sean argues that the Chinese position contains subtle logical flaws. On that note, Cody posted the Pentagon’s new Asia-Pacific Maritime Security Strategy, which the military proudly presented as the as-yet "most comprehensive assessment of land reclamation activities in the South China Sea.”

On this week’s Rational Security, both Russia’s relationship with international law and the Chinese economic crash featured in the discussion:

Stephen Haggard provided a detailed explanation of the ramp-up and ramp-down of tensions on the Korean peninsula over the past two weeks. Though the August 25th agreement appears to have successfully resolved the crisis that exploded after two South Korean soldiers were injured by an exploding mine, Haggard writes that “South Korea is once again back in its perennial bind: the agreement commits North Korea to surprisingly little.”

Stephen Watts and Sean Mann continued their debate with Gary Owen over the future of Afghanistan. While Afghanistan remains “one of the poorest and most fragile countries in the world,” they argue, things are less bleak than they have been or might be. All in all, they agree with owen that “there is cause for cautious optimism.”

Last week, the AP released a major and controversial story about the IAEA’s deal with Iran on inspecting the Parchin military site. Yishai discussed the AP’s report and what it might mean for the future of not only the nuclear agreement between Iran and the P5+1, but diplomatic relations with Iran more generally. Meanwhile, Cody pondered the argument—made by, including others, General Michael Hayden—that the United States should bolster the nuclear agreement with a conditional AUMF against Iran, to bolster the credibility of military deterrence in case of Iranian noncompliance. In Cody’s view, passing this kind of AUMF would represent a major misstep. But as he noted later, that hasn’t stopped Representative John Larson (D-CT) from introducing a draft AUMF into the House.

In terrorism news, Bobby noted the arrival of yet another material support case involving supporters of ISIS within the United States. And Bruce Riedel let us know that Saudi authorities had successfully captured Ahmed al Mughassil, the Hezbollah leader and mastermind behind the deadly 1996 bombing of a U.S. military base in Khobar, Saudi Arabia. Now, the questions that have to be answered are: will he be extradited? Will Saudi Arabia allow him to be questioned by U.S. intelligence? And first and foremost, what took so long?

David Lake examined the suggestion of an Israeli-Palestinian confederation. While the idea might seem attractive as an alternative to the increasingly unlikely two-state solution, he argues, forming a viable confederation poses serious challenges of its own. And Stephen Krasner suggested that instead of analogizing Israel’s current situation to Munich in 1938, we should instead turn to the Helsinki Accords of 1975, which emphasized international norms of human rights and facilitated dissident groups in the Eastern Bloc. He takes the view that, as occurred with the normative change precipitated by the Helsinki Accords, “Israel’s normative position is weakening internationally”—and as a result, the time for major change may be drawing near.

This week’s Lawfare Podcast featured a discussion with Brookings scholars Michael O’Hanlon, Ben Bernanke, and Mark Muro on the future of the U.S. defense economy, from the perspectives of both economics and national security.

And finally, as the Republican presidential primary drags on, these past two weeks have featured a good deal of discussion on the question of immigration and birthright citizenship. Amidst all the bombast and hot air, Michael Paradis took a mercifully careful and serious look at the “national security dimensions of birthright citizenship,” examining the hidden security implications of the Fourteenth Amendment’s grant of jus soli.

And that was the week that was.