The Week That Was: All of Lawfare in One Post

The big news this week was the public explosion of long-simmering tensions between CIA and the Senate Intelligence Committee over a soon-to-be-completed report on Bush-era interrogation techniques. Wells posted a heads-up during Senator Feinstein’s bombshell speech lambasting CIA on the floor of the Senate, and then followed it up with a link to the speech’s full-text. Orin outlined some legal reasons for why CIA probably did not violate the Computer Fraud and Abuse Act, and Chris Donesa followed up with three key questions that can help frame the conflict. Wells then noted the confirmation of Caroline Krauss as CIA’ General Counsel, replacing Acting General Counsel Robert Eatinger, who appears at the heart of the CIA-SSCI controversy. Jack, meanwhile, defended Eatinger, arguing that his DOJ referral of SSCI staffers wasn’t punitive or threatening. It’s simply CIA’s legal obligation to report even potential crimes. While all ears were hanging on CIA Director Brennan’s every word about the SSCI, Bobby flagged Brennan’s brief comments on the current structure of Al Qaeda during a talk at the Council on Foreign Relations. Bobby then outlined some important questions in defining what constitutes “associated forces” for a new decentralized enemy. Lawfare also had a particularly strong international focus this week: Ashley took another look at the ICJ’s provisional decision to enjoin Australia from collecting communications material, or using material already collected, between East Timor and its lawyers. She argued that it will be very difficult for the ICJ to avoid issuing a ruling with major implications for the legality of espionage. Relatedly, Ben flagged NSA Director Keith Alexander’s letter responding to ABA concerns over possible violations of attorney-client privilege in the same case. John flagged two important court decisions on ATS and TVPA suits. The first was last month’s 2^nd Circuit decision affirming the dismissal of suits against former Mexican President Ernesto Zedillo. John noted the significance of the ruling post-Samantar and asked for the perspective of the human rights community on the matter. John then followed this up with a post covering last week’s dismissal of a similar lawsuit brought by members of the Chinese Falun Gong against Cisco Systems for aiding and abetting Chinese torture. Judge Peter Messitte dismissed the suit on a number of grounds---all of which John reviews. Ben dissented from the widespread approval that the release of Harold Koh’s memos on extraterritoriality has been receiving. His criticisms invited an immediate response from Peter Margulies who defended the propriety of the drafting process. And Bobby flagged a Charlie Savage piece observing that the Obama administration is apparently officially unmoved. Paul noted the breaking news that two passengers aboard missing flight MH370 were using missing passports, and he promised to detail some of the steps that the world has taken since 9/11 to try to prevent this sort of thing. We also brought you a double-feature of Foreign Policy essays. In the first, Francis Fukuyama gave us a sweeping analysis of America’s place in the world, and particularly, the relationship between economic potential and practical political power.  And for the sake of timeliness, we also bumped up the publication of a second essay, an analysis of the situation in Crimea from former the former US Ambassador to Ukraine Steven Pifer. Pifer forecasts that, one way or another, Crimea will become an appendage of Russia, but he nevertheless recommends that the US adopt a hard line and refuse to accept Crimea’s change of status. By contrast, it was a relatively light week on the Snowden and metadata front. Lauren brought our attention to FISC Judge Reggie Walton’s rejection of a government request to retain telephony metadata beyond the five-year mark. A day later, she noted a contradictory order from San Francisco federal judge Jeffrey S. White. And later in the week, she let us know when Judge Walton ceded jurisdiction to regular courts addressing litigation on the subject. Ben posted this week’s podcast, a discussion between Anthony Romero and Michael Chertoff of national security surveillance, litigation, Snowden, metadata and much more. And Ritika followed up with video from a debate on “‘The Snowden Operation’: A Victory for Privacy Rights or for Russia?” featuring Edward Lucas and Stephen Holmes, and moderated by Ryan Goodman. And if you liked that debate, here’s another: Ben linked to a recent Intelligence Squared debate on the constitutionality of targeted killings of US citizens. And while he was on the subject, Ban flagged a CNN Money article on Chinese use of drones to combat pollution by our very own podcast pianist, Sophia Yan and posted a beautiful video of a drone exploring an exploding volcano. Meanwhile, in the world of cyber: I let readers know about the Senate Armed Services confirmation hearing for NSA nominee Adm. Michael Rogers, and Ben followed up with embedded video of the full hearing. Herb Lin, a scientist at the National Research Council, noted that a new version of the Cybercom web site sheet has left out a somewhat important parenthetical statement---that its operations are conducted “in accordance with all applicable laws and regulations.” He suggest that the line’s absence may be misinterpreted and is very bad PR. Stewart Baker posted the next installment of the Steptoe Cyberlaw Podcast: a discussion on 215 reform, bitcoin, Sprint’s price-gouging on wiretaps and more, and an interview with DHS’s former cybersecurity chief, Mark Weatherford. Ben linked to a fascinating hour of This American Life chronicling a reporter’s search for answers after the mysterious killing of Ibragim Todashev, an associate of Boston Marathon bombers and suspected murderer, by a FBI agent. Trust us, it’s a gripping hour of public radio. S. Yasir Latifi's complimentary review of Michael Allen’s Blinking Red: Crisis and Compromise in American Intelligence After 9/11 provided a peek at post 9/11 intelligence legislation and reforms. Wells noted a DOD press release announcing the successful transfer of Guantanamo detainee, Ahmed Belbacha, to the government of Algeria. But perhaps releases are a misplaces focus:  In a must-read essay, William K. Lietzau, until recently a Deputy Assistant Secretary of Defense for detainees, writes about how the demands to close Guantanamo are both conceptually incoherent and counterproductive. Only by ending the war on terror, insists Lietzau, can we return to an “almost normal” legal state. And that was the week that was.