The Week That Was: All of Lawfare in One Post

David Priess sat down with Will Inboden, a historian at the University of Texas at Austin’s Clements Center for National Security, to chat about the challenges of conducting research on decades-old administrations, the origins of former President Ronald Reagan’s national security views, how Reagan might view the United States today, and more:

Jack Goldsmith sat down with Kal Raustiala to discuss his new book, “The Absolutely Indispensable Man: Ralph Bunche, the United Nations, and the Fight to End Empire.” They spoke about Bunche’s role in the decolonization movement after World War II, why he’s known as a legendary diplomat, and more:

Stephanie Pell sat down with Riana Pfefferkorn, research scholar at the Stanford Internet Observatory, to discuss Apple’s new security feature that allows users to encrypt their iPhone backups to iCloud. They discussed the costs and benefits for users who choose to use the feature, how it plays into the a broader conflict known as the Crypto Wars, and how this feature relates to another part of Apple’s announcement where it indicated it would not scan iPhones for child sexual abuse material:

Stewart Baker, Jane Bambauer, Richard Stiennon, and Nate Jones sat down to discuss the recent release of ChatGPT, Apple’s latest cloud storage encryption, the EU data protection supervisory board’s intention to limit Meta’s access to first-party data, and more:

Alan Rozenshtein and Quinta Jurecic sat down with Suzanne Nossel, a member of the Facebook Oversight Board and CEO of PEN America, to discuss the board’s official findings about Meta’s cross-check program, more specifically its criticisms of the program (which exempted certain users from the platforms usual rules), and its policy recommendations for Meta:

Nicol Turner Lee sat down with Yolanda Jinxin Ma, Addisu Shaw, and Jane Munga to discuss how the digital divide in Africa stifles universal adoption and use of existing technology, the digital transformation underway on the continent, and the future challenges of universal adoption and use:

Martijn Rasser and Kevin Wolf discussed the Biden administration's export controls on semiconductor technology, the role of semiconductor chips in China’s military modernization and weapons development, and argued that the Biden administration should convince allies to take similar steps to restrict China’s ability to obtain semiconductor technology. 

Jordan Schneider sat down with Doug O’Laughlin and Dylan Patel to discuss the most important topics ChinaTalk has covered in 2022, including the politicization of semiconductors:

Jurecic and Rozenshtein sat down with Rick Hasen and Nate Persily to discuss former President Donald Trump’s potential return to Twitter and Facebook. They discussed the issues of the former president’s deplatforming, replatforming, and whether the former president will start tweeting again:

Claudia Swain shared the results of her test of artificial intelligence (A.I.).’s ability to write a Lawfare-style article. Swain used A.I. systems to produce pieces about U.S. District Judge Aileen Cannon’s Sept. 5 ruling to appoint a special master to oversee the Mar-a-Lago investigation.

Swain also announced a Lawfare Live event on Tuesday, Dec. 20 at 10 a.m. where Lawfare senior editors will discuss the Jan. 6 committee’s final report, which is expected to be released on Dec. 19. Register here. 

Sam Jackson provided a summary of the Oath Keepers history and strategies as well as the group’s role in the larger ecosystem of right-wing extremism. Jackson argued that despite a successful prosecution, the threat of anti-government violence persists due to the presence of other right-wing extremist groups with similar ideologies. 

Natalie Orpett sat down with Saraphin Dhanani to discuss United States v. Fischer, a case before the Circuit Court of Appeals for the District of Columbia relating to criminal prosecutions for the Jan. 6 attack. They spoke about each parties’ arguments before the court, how the judges responded, and what might happen to the charge of corrupt obstruction of an official proceeding:

Steve Vladeck and Bobby Chesney sat down to discuss former President Donald Trump’s failure to assert executive privilege in the Mar-a-Lago documents litigation, the recent extradition to the United States of Abu Agila Masud, who was charged over his role in the bombing of Pan Am 103, the recent arrest of crypto exchange entrepreneur Sam Bankman-Fried, and more:

Scott R. Anderson, Jurecic, and Rozenshtein sat down with Orpett to talk through the week’s big national security news. They discussed the current turmoil in Haiti and how the international community should approach the situation, the recent prison exchange of Brittany Griner and Russian arms dealer Viktor Bout, and how the Justice Department is likely to approach the prosecution of Masud:

Sam Denney discussed an unsuccessful coup attempt in Germany inspired by a rejection of the German government by a variety of conspiracy theories. Denney argued that the coup attempt is a symptom of the fraying of German society and that the beliefs and ideas that inspired it will continue to pose a threat to German democracy. 

Dustin Lewis and Naz Modirzadeh examined U.N. Resolution 2664 (2022), a humanitarian exemption that requires member states to permit certain humanitarian related activities that would otherwise violate Security Council asset freezes. They highlighted various factors to monitor in determining whether or not the exemption is effective and argued that the exemption represents a shift in the Security Council’s rationale regarding global security policy. 

Rebecca Crootof examined the absence of an individual right to compensation for victims under international humanitarian law, the various issues that would need to be considered to establish a regime that could adjudicate individual harms due to states violations of international law, and argued that a permanent institution should be established to adjudicate claims both for Ukrainian individuals and all wartime victims.

Hayley Evans discussed the International Criminal Court’s (ICC) Office of the Prosecutor’s (OTP) resumption of investigations into alleged war crimes committed in Afghanistan. Evans examined the logic behind the ICC’s initial decision to defer the investigation, the OTP’s arguments as to why the investigation should resume, and what the resumption of the investigation means for accountability in the region. 

Karen Sokol provided an overview of international climate law and the United States’s historical opposition to effective international climate law. Sokol also discussed the geopolitical environment that resulted in the establishment of a loss and damage fund for climate-related damages, the role of attribution science in determining culpability for those damages, and the use of other sources of international law besides the United Nations Framework Convention on Climate Change to determine responsibility for climate change-related damages.  

Brian Murphy, Jr. discussed a Department of Homeland Security (DHS) report, released with revised redactions in October 2022, and a number of whistleblower complaints filed by Murphy regarding former DHS Acting Secretary Chad Wolf’s and others’ attempts to manipulate intelligence for political purposes. 

Cynthia Miller-Idriss analyzed the FBI’s 2021 hate crime report that was released earlier this week that has sparked controversy because it contains incomplete data suggesting a decrease in hate crimes from the previous year. Miller-Idriss suggests that this will have detrimental implications to prevention strategies, policy, and resource allocation combating hate crimes unless the FBI addresses the errors.

Baker examined a provision of the 2022 Consolidated Appropriations Act that restricts what jobs members of the intelligence community can take after they leave government positions. Baker argued that certain aspects of the provision are overbroad while others are too narrow and also highlighted the impact the regulation will have on intelligence employees who leave for the private sector and eventually make their way back to government service. 

Schneider shared an episode of the Idea Machines podcast in which Ben Reinhardt sat down with Stephen Dean to discuss how government-funded science can fail American society:

And Swain shared a call for listener questions for Lawfare’s annual “Ask Us Anything” podcast episode. If you have a question, please leave a voicemail at (202) 556-4650, or send an email with a recording of your question to askusanythinglawfare@gmail.com.

And that was the week that was.