The Week That Was: All of Lawfare in One Post

Dominating Lawfare this week was President Obama’s Wednesday speech detailing his plans to “destroy” and “degrade” ISIS. Before the speech, our contributors speculated as to what kind of legal justifications the President would invoke to legitimize military engagement with the group. After it, they analyzed his choices and what kind of lasting legal impacts they could have. On the Sunday before President Obama’s speech, Bobby speculated as to the significance of the 2001 AUMF if the President believes that Article II standing alone empowers him to militarily engage with the group. Jack pointed out that the President released his seventh War Powers letter since June on Monday, which in his mind all but confirmed the theory that the administration intends to chop up the campaign against ISIS into short, discreet missions in order to avoid triggering Section 5(b). He also responded to Marty Lederman’s commentary on his earlier WPR-related posts. On Monday, Bobby speculated on Iraq’s implications for the continuing relevance of the 2001 AUMF. In the run-up to the speech, both the President and Congress appeared to be dancing around the issue of authorizing force against ISIS: the President seemed to want congressional approval, but wouldn’t ask, while Congress wanted him to ask, but didn’t promise that it would deliver. Ben had some advice: skip the high school two-step, and get down to business. Ben also shared a video feed of Department of Homeland Security Secretary Jeh Johnson speaking at the Council on Foreign Relations. In response to a Post story detecting possible administration attempts to invoke the 2002 Iraq AUMF as authorization against ISIS, Bobby questioned whether such an action was just a trial balloon or a serious legal strategy. Cody provided four of the would-be ISIS AUMFs currently being considered in Congress, along with notes from their respective sponsors. He also alerted readers to an event titled, “The Future of Civilian Robotics,” which will be held at Brookings on Monday, September 15th at 2:00 PM. The event features a conversation on legal issues arising from advances in robotics, which will be held between John Villasenor, Gregory McNeal, and our very own Wells Bennett and Benjamin Wittes. He also flagged a draft of the U.S. resolution to the UN Security Council on foreign terrorist fighters. Wells flagged a panel discussion entitled, “The Legal Basis for Striking ISIS,” to be hosted by the Heritage Foundation’s Cully Stimson and featuring Dechert’s Steve Bradbury and our own Bobby Chesney and Steve Vladeck. The panel is scheduled for September 25th. Finally, Ben shared a video of the President's address as well as the text of the speech. After the speech concluded, Ben doubted the plausibility of using the 2001 AUMF as legal justification for going it alone against ISIS, especially since ISIS appears to have no association with Al-Qaeda. Wells agreed. Bobby assented as well, claiming that regardless of ISIS claims to be the “true inheritor” of bin Laden’s legacy,” the argument is “stunning from a legal perspective.” Steve Vladeck was also surprised by the administration’s legal theory, but took issue with Bobby’s and Ben’s reactions, arguing they called for a similar open-ended authorization, which would be easily exploitable by the Executive. He also cautioned us to demand an elucidation of the necessary antecedents to the action the President described: “what, exactly, is the threat that ISIL poses to the United States, and why is that threat sufficient to justify uses of force beyond conventional self-defense?” Ashley Deeks also analyzed the legal justifications the Obama administration might employ to legitimate ISIS strikes in Syria. She examined the “Brennan approach” and pointed out that whether or not you find it plausible depends on whether or not you buy the argument that ISIS is al-Qaeda. Jack linked to an essay he published in Time, where he noted the irony of how President Obama, initially an avowed war-powers constitutionalist, claimed to only “welcome” Congressional authorization, not “insist” on it. He later clarified that his objection to the ISIS “AUMF gambit” is not because he believes it is illegal, but rather because the administration is stretching the AUMF “beyond all recognition.” And he then ruminated on a subsequent statement that the administration might also rely on the 2002 Iraq AUMF for authority in the current campaign. Jack also noted that while U.S. Secretary of State John Kerry might think the word “war” is not the right terminology for the U.S.’s campaign against ISIS, if the administration is using the AUMF, they are engaged in “armed conflict,” the modern word for war. In other news, Bobby noted that the DOD has a new website for the Proliferation Security Initiative, which concerns the legal architecture surrounding high seas interdiction of ships with possible WMD links. He also linked to a short piece he wrote on the PSI back in 2003. Cody brought us the news that Jose Padilla, who was convicted in 2007 on several terrorism-related charges, was re-sentenced to 21 years, from 17.5 years before. On Sunday, Matt Danzer tipped us off that the Department of Justice declassified two Office of Legal Counsel opinions by Jack Goldsmith from 2004. He later summarized the memos, which analyze the Bush-era surveillance program codenamed STELLAR WIND. Over the past week, Bobby debated with Kevin Heller the domestic legal basis for the CIA’s drone strikes, with discussion centering on the definition of “traditional military activity,” and what Title 50’s “fifth function” actually means. The posts can be found here, here, and here. Stewart Baker brought us the Steptoe Cyberlaw Podcast, which featured an interview with Orin Kerr, professor of law at George Washington University. The 33rd episode of the podcast focused on topics including, but not limited to, the NSA’s 215 program, the continuing debate over the right to be forgotten, and how a Hasidic child abuse trial has induced two significant privacy rulings in New York. Bobby brought us another installment in the Transatlantic Dialogue series, this one featuring Sarah Cleveland, who co-directs the Project on Harmonizing Standards for Armed Conflict with Sir Daniel Bethlehem at the Columbia Law School Human Rights Institute. The Project seeks to analyze the extent to which the International Armed Conflict treaty regime can be applied, in a legal sense, to non-international armed conflicts. Alex Ely contextualized the recent visit by U.S. officials to Moscow over alleged Russian violations of the Intermediate-Range Nuclear Forces Agreement (INF), arguing that the U.S. has had its own issues ratifying relevant arms control treaties. Ben flagged a 1944 memo from Herbert Weschler, then the assistant attorney general of the U.S., on the government’s growing view of conspiracy as a war crime. He noted the striking similarity between that discussion and the current debate on the Bahlul case. In honor of Friday’s session at the U.N. Human Rights Council on the right to privacy in the digital age, Ashley posted a draft of her forthcoming article on the subject. Ben flagged the latest DNI Guantanamo detainee report on recidivism. Paul Rosenzweig participated in a podcast for the Security Ledger focusing on the vulnerability of the Internet of Things. He also recommended a paper on the role of consequence in Fourth Amendment analysis by Scott Glick from the National Security Division of the Department of Justice. Wells flagged a FISCR order on Friday that directed a declassification of the FISC’s 2008 opinion in In Re Directives. He later provided links to the released documents. In this week’s Foreign Policy Essay, Carol R. Saivetz, a research affiliate in the Security Studies Program at MIT, contends that while the Kremlin’s quixotic “quest for Novorossiya” may shore up domestic support in the short-term, in the long-term, Russia’s economy, geopolitical standing, and control over its far-flung territories are all likely to suffer for the adventurism. On Saturday, Cody brought us a Lawfare Podcast entitled, “The ISIL Threat - A National Counterterrorism Assessment,” featuring Bruce Reidel, Director of the Intelligence Project and Senior Fellow at Brookings, as the moderator and Matthew Olsen, Director of the National Counterterrorism Center, as the panelist. In this episode, Olsen detailed the structural factors underlying and limiting ISIL’s rise and also outlined the actions necessary to constrain its threat potential to the U.S. both domestically and internationally. And that was the week that was.