The Week that Was: All of Lawfare in One Post

Let's begin with the White House’s recent release of its highly anticipated Big Data report: Ben noted the release of the report, and Paul gave us some of his reactions. In short, he’s pleased that the administration has taken a clear position that use of data (rather than collection of it) should be the focus of regulation, but disappointed that the report failed to stake out any really substantive or novel positions. With the administration in a communicative mood, Ritika flagged a post on the White House blog from White House Cybersecurity Coordinator Michael Daniel explaining some of the thinking that goes into government decisions to disclose (or not disclose) cyber vulnerabilities. Jack reacted, parsing the post carefully and concluding that the administration has decided not to accept the Review Group’s Recommendation #30. Also on cyber, Paul posted a draft paper on internet governance that he will be presenting at the a cyber governance conference organized by the Hague Institute for Global Justice. In the paper, Paul pushes back against a trend toward an increasing focus on centralization. Meanwhile, Ben spent the last few days at Pacific Command’s 27th annual MILOPS conference. While there he reflected on how recent Chinese actions have done a remarkable job of scaring its neighbors into American arms and summarized Capt. Patrick McCarthy’s “NIAC detention for dummies” talk. Speaking of detention, Ben noted the Periodic Review Board’s decision recommending the transfer of Guantanamo detainee Ali Ahmad Al-Razihi’s transfer to Yemen. And military lawyers Butch Bracknell and James Weirick suggested eight ways to improve the military commissions systems. They argued that with a handful of changes aimed at increasing transparency, efficiency, and higher-level oversight, the commissions systems can be effective, constitutional and consistent with best practices. While we’re on the subject of commissions, Wells posted a statement from the military commissions’ chief prosecutor, Brig. Gen. Mark Martins, in which Martins pushes back harshly against some of the commissions’ critics for seeking to “generate a spectacle” and behaving as though “lampooning the proceedings were a sport.” Wells followed up with daily coverage of the Al-Nashiri pretrial motion hearings, including more debate over discovery, testimony by another psychiatrist regarding the defendant’s psychological state and medical treatment, and arguments over whether the MCA’s execution statute is biased against Muslims. Wells also flagged Al-Nashiri’s newest habeas challenge, which argues that there were, in fact, no ongoing hostilities in Yemen at the time of Al-Nashiri’s alleged actions. Relatedly, Ben flagged a Just Security post by Marty Lederman analyzing Justice Breyer’s comment on the Hussain cert denial. Lederman explained that the opinion was an invitation to new habeas arguments, especially as the war in Afghanistan winds down. Bobby responded by flagging an excerpt from his article, Beyond the Battlefield, Beyond al Qaeda, where he argues that questions about LOAC’s continuing applicability will erode one of the major pillars of our detention program’s legal architecture. But what does happen to the Executive’s legal authorities after the Afghanistan draw-down? Ritika posted our latest Lawfare Podcast, a debate between Ben and Georgetown Law professor Rosa Brooks on the future of the AUMF. Gregory McNeal moderated. Reacting to news reports that Rep. Duncan Hunter intends to introduce legislation amending the AUMF to authorizing targeting of those responsible for the Benghazi attacks, Ashley argued that any such military activities would run into some serious international law problems. And Steve followed quickly with his own criticism, arguing that Hunter’s vengeance-minded approach to AUMF-reform is completely bonkers. On the journalism front, Wells noted the Supreme Court’s denial of cert in Hedges v. Obama. And Chris Donesa reacted to Intelligence Community Directive 119 restricting contact between the IC and the press. He noted, however, that the directive doesn’t actually change much, because most intelligence leaks don’t usually come from the IC itself, but from “senior administration officials” who remain completely unaffected by the directive. In this week’s Foreign Policy Essay, political scientist F. Gregory Gause discussed the current state of the Saudi-American relationship, and he emphasizes the fissures that have emerged in the two countries approaches to conflicts in Syria and Egypt. Harvard Law Professor Philip Heymann took a closer look at the after-the-fact review of the FBI’s conduct in the run-up to the Boston Marathon bombing and concludes that there is room for improvement. In the latest Steptoe Cyberlaw Podcast, a slightly expanded cast of characters discuss recent news items (noting along the way that it’s been a pretty good week for NSA) and interview Elana Broitman, a deputy assistant secretary at DOD, and Shawn Cooley who manages DHS’s participation in CFIUS. Finally, former senior intelligence official Bruce Riedel reviewed Carlotta Gall’s The Wrong Enemy: America in Afghanistan, 2001-2014 and commends Gall for the unprecedented detail in her account of Pakistan’s Intelligence’s support for Afghani Taliban. Riedel praises her insight into Mullah Omar's relationship with Pakistan’s generals, and especially her focus on General Ashfaq Parvez Kayani. And that was the week that was.