The Week That Was: All of Lawfare In One Post

FISA reform took center stage this week: Raffaela gave us a detailed and elucidating tour of the relevant legislative plans, players, and issues. While the two main proposals share some common ground, Ben discussed the fundamental disagreement on the issue of bulk metadata collection and the potential legislative stalling-power such divergence holds. We linked to C-SPAN coverage of the Privacy and Civil Liberties Oversight Board hearing on FISA reform in which contributing editors Orin Kerr and Steve Vladeck participated. Orin gave us a follow-up post laying out his argument for using the “rule of lenity” to regulate surveillance. Steve replied with three reasons why he thought Orin’s rule won’t fix the problem. Amy Zegart provided some interesting polling data on spying and dissected what the numbers might mean in the age of “spytainment” and massive security leaks. From the Hoover Institution’s recent media colloquium, Ben brought us three podcasts. In the first, Ben analyzed the framework for targeting introduced in Obama’s May 23 National Defense University speech. In the second, Matt W. and Ken discussed autonomous weapons and the potential for an anticipatory ban on “killer robots”---a topic they continued to explore in a Wall Street Journal article. In the third, Jack led a frank, judicious, and highly entertaining discussion on the evolving landscape of national security journalism. Jane pointed out a development in Aamer v. Obama, the force-feeding case in which none of the original petitioners are still being force-fed. One Imad Abdullah Hassan, a detainee who is hunger-striking, moved to intervene in an attempt to stave off an argument that the case is moot. In Hatim v. Obama, Raffaela detailed the government's reply brief and noted how it continues to rely on § 2241 of the Military Commissions Act. Thanks to defense lawyer James Connell III, Wells was able to point out two important yet unannounced rulings in the 9/11 case. First, the military commission ordered the government to produce all correspondence with the International Committee of the Red Cross relating to Guantanamo Bay detention. Second, the commission assumed authority over detainee mail, a move that will allow defense attorneys to discuss “any topic with their clients as long as it is related to the case.” Ben gave us three thoughts on Eric Holder's disparaging comments regarding the KSM trial. In Hentif v. Obama, Raffaela explained how the D.C. Circuit's definition of  “entry” as it is used in 28 U.S.C. § 2107 ended the court’s jurisdiction on the appeal. Faiza Patel replied to Jens Iverson in their discussion on whether OPCW action in Syria will violate the Chemical Weapons Convention (CWC). Taking the CWC a bit further afield, John discussed his view of Bond v. United States, the bizarre Supreme Court case in which a Pennsylvania woman was convicted of using a toxic chemical in an attempt to poison her husband’s lover. This, some contend, is undue federal intrusion in a local issue and in violation of the Tenth Amendment. John explains why that view is incorrect. Lauren summarized CIA’s filing justifying its refusal to provide information in response to the FOIA request of the ACLU, which sought details of the Agency's drone-related activities. Jane gave us context for understanding David Miranda’s challenge to his nine hour Schedule 7 detention earlier this year in London Heathrow. Zach summarized Dzhokhar Tsarnaev's reply to the government’s response to his motion to vacate special administrative measures (SAMs) imposed on him and his attorneys. Wells noted that the FAA published two documents important to the agency’s efforts to pioneer policy on the domestic use of drones. Edward Snowden might testify in Germany against US mass surveillance programs. Ashley probed the possibility and wonders just how big of a headache a Snowden visit would create. Jane posted the entirety of her serialized Security States report "Bad Code," an in-depth analysis of private software providers' failure to fully secure their products from vulnerabilities. Paul expands upon one possible conclusion from Jane’s work: that software writers should be liable for unreasonable defects in their code as the “least cost avoider” in the complex market. Paul noted the spending disparity between US and EU cloud computing sectors. In the latest installment of her Cairo Diary, Laura Dean took us into the restricted courtroom of the Morsi trial. Sean linked us to his National Interest piece which took a strategic look at military forces in East Asia. Matt W. noted the publication of his article on constitutional war powers in the context of Syria in the Yale Law Journal Online. Ben pointed out a report by Cully Stimson of the Heritage Foundation which looked at the particularly acute problem of sexual assault in the military. Wells noted a legislative development: the Senate Select Committee on Intelligence passed an Intelligence Authorization bill that has some some interesting details including future Senate confirmation of DIRNSA and much more. Ben gave us reason to doubt Rep. James Sensenbrenner's dangerously selective account of the recent history of FISA oversight and authorization. John drew attention to the “excellent” move to nominate Caroline Krass as the next CIA GC. And finally, while he stopped short of advocating the use of low-grade explosives as an instrument for insurrection, Ben encouraged us to "remember, remember, the Fifth of November." And that was the week that was.