The Week That Was: All of Lawfare in One Post

Let's start this week's recap with posts related to targeting. Ashley talked about the role of consent in targeting non-Al Qaeda members in Yemen in the wake of new reports that the DOD might provide more military assistance to the Yemeni government. She advocates a more robust and transparent discussion about the role of consent to the use of force---particularly because Yemen is not shy about cooperating with the U.S. government on counterterrorism issues. David Barron's nomination to the First Circuit Court of Appeals has gotten in trouble because of targeting issues. Sen. Rand Paul is filibustering it. Ben was irritated about Sen. Paul's "wrongheaded" op-ed on the matter. Jack wrote a piece arguing that the reasons to transfer drone strikes from the CIA to DOD are incorrectly formulated, and that we need to be asking different questions. Bobby pointed out that the responsibility for drone strikes has not been transferred from CIA to JSOC because of differences between the two organizations regarding quality control for the strikes. Quality control is indeed important; apparently a drone almost collided with a commercial airliner, said Ben. It was a light week for NSA news. I posted the latest tranche of FISC filings and 215 orders declassified by the ODNI. Glenn Greenwald's new book No Place to Hide came out this week. Jack noted David Cole's review of it. Paul also had an ironic tidbit about the relationship between the founder of eBay and Greenwald. FISA reform enthusiasts: Be sure to check out Orin's new draft article, forthcoming in the Virginia Law Review. The ODNI released a memo clarifying the Obama administration's new pre-publication review policy. Jack flagged it. And Ben was at the Hoover Institution in California for a conference on "Intelligence Challenges" on Thursday. He wrote in and described one of the themes that has resurfaced repeatedly at the discussions, which he called "the intelligence legitimacy paradox." Remember Section 1039 of last year's NDAA, which mandated that the Obama administration report to Congress on the legal rights of Guantanamo Bay detainees upon transfer to the United States? Well, the report has been delivered, and we now know what those rights would be, said Wells. From Guantanamo also come two government filings in the Al Nashiri case, Wells announced. Chief Justice Roberts might very well become the most important author of foreign relations opinions in the history of the Supreme Court, explained Ingrid. She also wrote that under his leadership, the Court has not deferred to the executive branch much in interpreting ambiguous treaties and statutes in foreign relations cases. Philip Heymann responded to Michael German's critique of his initial post on the FBI’s investigation of Tamerlan Tsarnaev. John commented on the Samantar case before the Supreme Court. He believes "the Supreme Court should grant cert and reverse (or vacate and remand)." Paul kept us more than abreast of the latest cyber news: He discussed the Washington Post story about the FBI looking to change outdated rules on obtaining a warrant when a computer's physical location is unknown. He also directed readers to a new paper on cell phone surveillance, and the latest cyber and tech stories in "Bits and Bytes." Sama'a Al-Hamdani wrote this week's Foreign Policy Essay about the vexing U.S.-Yemen relationship, and offered some thoughts on what the Yemeni government could do to better combat terrorism in its borders. This week’s Lawfare Podcast featured Michael O'Hanlon and Jim Steinberg's book launch at Brookings. The volume, Strategic Reassurance and Resolve: U.S.-China Relations in the Twenty-First Century, provides an overview of the  major military and security issues in the bilateral relationship, and outlines policy recommendations for both sides to adopt. This week's Steptoe Cyberlaw Podcast featured an interview with Chris Painter, the State Department’s Coordinator for Cyber Issues. And that was the week that was.