The Week That Was: All of Lawfare in One Post

At Lawfare, the week began as usual: Wells posted our latest podcast, a discussion between a number of senior Brookings scholars on “The State of International Order.” Dan Byman wrote this week’s foreign policy essay, “The New Sectarianism,” analyzing divisions and violence in the Middle East, and suggesting what the West might do to deal with it. Then Russia invaded Ukraine. As background reading for those of us who are not Eastern Europe experts, Matt Danzer gave us a brief link-filled lesson in the geography and history of Crimea Ashley sketched some of the international law issues at play in Russia’s invasion of Crimea, and suggested that for all of international law’s malleability, Russia’s actions are pretty clear violations. She then posted an extended reaction from reader Stefan Soesanto, who argued that Russia’s invasion was justified as both a humanitarian intervention and as a response to the invitation of Ukraine’s (still) lawful president. Lauren wrote a post linking to some of the online commentary and debates about the international law angle of the crisis in Crimea. Paul posted on the low-level cyber conflict being waged between Ukrainian and Russian hackers and estimated the respective sides’ cyber capabilities in a potential escalation. He also noted a call from Admiral (Ret.) James Stavridis for NATO to convene allies with cyber capabilities to “consider options.” And later in the week, Paul provided a cyberwar update: He described Russian forces continuing their attempt to cut off and gain control of communications in and out of Crimea, and he noted an international array of activist hackers organizing against Russia. Bobby reacted to a statement from Jonathan Eyal of the Royal United Services Institute in the Guardian claiming that Russian soldiers’ concealing of their Russian affiliation in Crimea constitutes a “gross violation” of the laws of war. Bobby questioned whether the laws of war apply to the current situation at all and noted that as long as soldiers are still wearing uniforms, they are probably not violating principles of distinction, even absent national affiliation badges. It wasn’t just the crisis in Crimea that got us thinking about international law this week: Ben flagged an ICJ decision that follows on the heels of a much-debated New York Times story reporting on Australian surveillance of East Timor and its lawyers during trade negotiations. The ICJ voted overwhelmingly to order Australia “not interfere in any way in communications between Timor Leste and its legal advisers.” And Wells noted a Charlie Savage story in the New York Times analyzing two memos Harold Koh wrote before leaving the State Department. The memos make the case for the United States to revise its interpretive stance on the extraterritorial application of the International Covenant on Civil and Political Rights, and the Convention Against Torture. Peter Margulies followed up this morning with a post endorsing Koh's call. Onto drones: Ben flagged a Forbes article by Ryan Calo analyzing an administrative law judge’s decision to overturn an FAA fine for private drone use. Ritika noted the release of a new report on drones and proportionality from Ben Emmerson, a UN Special Rapporteur. In the report, Emmerson urges the international community to settle open legal questions regarding the permissibility of targeted killings. And in a guest post, Paul Scharre from the Center for a New American Security’s reflected on a recent Chatham House conference on autonomous weapons systems. His post is thorough and nicely lays out many of the current debates over autonomous weapons. While we’re discussing tech, this week Ben also welcomed TechTank, a new technology blog whose contributors will include Darrell West, Cameron Kerry, and Walter Valdivia.  And Wells reflected on his recent jury experience and the creepy ubiquity of camera surveillance in public spaces. Of course, no week is complete without our fill of Snowden and NSA-related intrigue: Paul flagged an American Bar Association course listing entitled “The Ethical Implications of NSA Surveillance” that lays out ethically required actions that lawyers must take to protect their clients’ data, and noted that the course description is yet another sign that the debate is trending against NSA. And Ben posted video from a series of panels at a recent Federalist Society symposium on “The NSA, Security, Privacy, and Intelligence.” The event featured Michael Chertoff and Anthony Romero, and Ben was on a panel that included Steven Bradbury, Jim Harper, Kate Martin and Nathan Sales. (The Romero-Chertoff debate will also be this week's episode of the Lawfare Podcast later today.) Later in the week, Ben also posted the text of Snowden’s testimony to the European Parliament, and Jack linked to new article by Susan Landau providing a thorough overview and explanation the Snowden revelations of the last few months. Speaking of podcasts, Ben excitedly announced that the Steptoe Cyberlaw Podcast will now be hosted on Lawfare, and Stewart Baker promptly followed the announcement with a podcast discussion of NSA, data privacy and other such matters as well as an interview with Adam Sedgewick, NIST’s policy adviser on cybersecurity. Bobby also let us know about some security related programs happening in Austin during South by Southwest. Ben noted the release of the latest Guantanamo reengagement report, and observed that the recidivism numbers appear to be relatively steady. He also linked to a Secrecy News article by Steve Aftergood reporting on the release of a recent CRS report on whether Congress can compel disclosure FISC opinions. The report concludes that “Congress’s power to compel the release of information held by the executive branch might have limits” and that attempts to do so may result in a “separation of powers issue.” And that was the week that was.