The Week That Was: All of Lawfare in One Post

On Friday, Ben pointed out that while it may be fashionable to blame the NSA as the only “bad guys” collecting your data; many organizations, including even the Library of Congress, are actively collating and analyzing your personal information. Wells noted that the US government has appealed the dismissal of French oil tanker charges in the capital military commission case against Abd al-Rahim al-Nashiri. Ben commended Senator Tim Kaine of Virginia for his assiduous work, rare in Congress these days, in introducing a well-informed, albeit imperfect, bill to authorize the fight against the Islamist group. On Thursday, John welcomed the long-delayed nomination of Brian Egan to be the new State Department Legal Adviser, and urged the Senate to quickly confirm him. Jack flagged comments made by Senator Udall at Wednesday’s Senate Arms Services Committee hearing regarding US covert actions to train 2-3,000 moderate rebels in Syria. He also tipped us off about the CIA’s recent declassification of hundreds of articles from its in-house journal, “Studies in Intelligence.” Paul Rosenzweig assessed the constitutionality of the FBI’s new facial recognition program as well as what kinds of risks it poses to civil liberties and privacy. Jack argued that two of the draft AUMFs currently under consideration in Congress do not really limit authorization for the President to use force against the Islamic State, even though they purport to do so. Jane noted on Wednesday that the government filed a response in the Al-Bahlul v. United States case and summarized its arguments. Bobby asserted that while the President’s invocation of the 2001 AUMF may “stick” insofar as it is not challenged by Congress or the courts, this does not mean everyone accepts the alleged merits of the administration’s approach, as Cody pointed out earlier with respect to Senator Kaine’s AUMF. Cody also shared Rep. Adam Schiff’s ISIS AUMF, as well as the amendment released by the House Rules Committee that would authorize the DoD to begin training and arming moderate Syrian rebels. Paul speculated as to whether cybersecurity has “jumped the shark” with the recent announcement of the new TV series, CSI: Cyber. Wells promised that while he could not personally attend a two-day pre-trial hearing in the case of United States v. Abd al Hadi al-Iraqi, Lawfare would follow it closely. He shared the Chief Prosecutor’s statement on the hearing and later linked to Matt Danzer’s read-out of the afternoon’s proceedings. Kenneth Anderson and Matthew Waxman shared their recently published article on law and autonomous weapons, which was co-written with Daniel Reisner, the former head of the IDF’s International Law Department, entitled, “Adapting the Law of Armed Conflict to Autonomous Weapon Systems.” Alex Ely combed through the documents from the In Re Directives litigation that were declassified last week and summarized the key features of the FISCR’s 2008 ruling. Bobby continued Lawfare’s coverage of the Transatlantic Dialogue on International Law and Armed Conflict, and linked to a response by Lawrence Hill-Cawthorne to Sarah Cleveland’s earlier post on the Project on Harmonizing Standards for Armed Conflict. He also shared the discussion paper that Geoff Corn authored on “how criminal responsibility relates to battlefield regulation.” Stewart Baker brought us the 34th episode of the Steptoe Cyberlaw Podcast, which featured an interview with Dr. Phyllis Schneck, the Deputy Undersecretary for Cybersecurity at the Department of Homeland Security’s National Protection and Programs Directorate (NPPD). Jane noted that the appellees in the Hatim v. Obama case filed for an en banc rehearing and summarized their arguments. She also pointed out that the D.C. Circuit denied on Monday the appellees’ motion in Klayman v. Obama to televise the oral argument. The appellees subsequently filed a similar motion for rehearing en banc. Cody linked to a conversation the Brookings Institution hosted entitled, “The Future of Civilian Robotics. The lively discussion featured Ben as moderator and Wells, John Villasenor, and Gregory McNeal as panelists. On Monday, R. Taj Moore provided an overview of the draft UN Security Council resolution aimed at mitigating the threat posed by foreign terrorist fighters (FTFs). Ben criticized the New York Times’ Monday oped by philosophy professor Firmin DeBrabander that claimed drone warfare means the end of democracy in the United States. In this week’s Foreign Policy Essay, Audrey Kurth Cronin, Distinguished Service Professor at George Mason University’s School of Policy, Government, and International Affairs, argued that without a clear idea of what the end of the war on terror looks like, the US’s strategy is “fundamentally flawed.” On Saturday, John pointed out that the administration still has not explained its international legal basis in attacking ISIL in Syria, and urged it to do so. In this week’s Lawfare Podcast, Ben, Bobby, Wells, and Foreign Policy magazine’s Shane Harris discussed the WPR, the prospects of Congress voting on authorization for action against ISIS, and the Obama administration’s legal theory for action, among other topics. And that was the week that was.