The Week That Was: All of Lawfare in One Post

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Benjamin Wittes also discussed the significance of the materials cited in the endnotes of the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol’s executive summary of its final report.

Quinta Jurecic also expressed concerns about how the House Select Committee to Investigate Jan. 6’s executive summary of its final report neglects to discuss failures of U.S. law enforcement to adequately collect and disseminate intelligence to predict and respond to the Jan. 6 attack on the U.S. Capitol. Jurecic discussed the intelligence available to law enforcement and intelligence agencies prior to Jan. 6, how internal tensions within the committee could have impacted the committee's framing of the law enforcement response, and argued that a full accounting of the response is necessary to remedy the failures of law enforcement and intelligence agencies on Jan. 6. 

Will Appleton and Tyler McBrien shared the final report of the House Select Committee to Investigate the Jan. 6 Attack on the United States Capitol. 

Hadley Baker shared the final hearing of the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol where the committee summarized the findings of its investigation and voted on criminal referrals and the release of its final report:

Appleton also shared the executive summary of the House Select Committee to Investigate the Jan. 6 Attack on the United States Capitol’s final report which broadly summarizes the committee's key findings and criminal referrals. 

Katherine Pompilio shared  42 transcripts of witness testimony released by the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol. The transcripts include testimony from Cassidy Hutchinson, Alex Jones, Michael Flynn, and others. 

Natalie Orpett sat down for a live event with Jurecic, Roger Parloff, Molly Reynolds, Alan Rozenshtein, and Benjamin Wittes to discuss the final hearing of the House Select Committee to Investigate the Jan. 6 Attack on the United States Capitol and the newly released executive summary of the committee’s final report:

David Priess sat down with Troy Senik, author of “A Man of Iron: The Turbulent Life and Improbably Presidency of Grover Cleveland,” to chat about how former President Donald Trump’s attempts to return to the presidency compare to Grover Cleveland’s, the cases of presidents who lost their reelection bids and then tried again, how views of presidents change over time, and more:

Daniel J. Hemel discussed the House Ways and Means Committee’s decision to publish six years worth of former President Donald Trump’s tax returns following a years-long court battle, as well as a report summarizing the returns. Hemel also discussed the options available to the committee in determining what to do with the returns and the potential for the release to result in the weaponization of tax return disclosures for political ends.  

Saraphin Dhanani discussed oral arguments heard before the U.S. Court of Appeals for the District of Columbia in a case to determine if federal prosecutors can lawfully charge three Jan. 6 defendants with corrupt obstruction of an official proceeding.

Scott R. Anderson, Jurecic, and Rozenshtein were joined by Reynolds to discuss the week’s big national security news. They discussed the criminal referrals made by the Jan. 6 Committee, the trajectory of the Russia-Ukraine conflict, Rep. Kevin McCarthy’s prospects of becoming Speaker of the House in the next Congress, and more:

Hayley Evans discussed the resumption of the International Criminal Court’s (ICC) Office of the Prosecutor’s (OTP) investigation into alleged war crimes in Afghanistan. Evans outlined the dispute between the Pre-Trial Chamber II and the OTP over the scope of the investigation, the OTP’s decision to appeal a part of the Pre-Trial Chamber’s decision, and argued that, despite the resumption of the investigation, its actual scope is currently unclear. This was the second piece of her two-part series regarding the disagreement at the ICC over the Afghanistan situation.

John Bellinger discussed the criminal charges brought against Abu Mohammad Mas’ud Kheir Al-Marimi for his role in constructing the bomb that blew up Pan Am flight 103 in 1988. Bellinger also discussed charges previously brought against other defendants who played a role in the bombing, the unusual negotiations that took place between private attorneys and the Libyan government, and argued that the current prosecution of Al-Marimi could lead to further accountability for the bombing of Pan Am 103. 

Anna Meier questioned the effectiveness of Germany’s bans of and designations on white supremacist organizations and their activities in the country. Meier explained the justification for the German law used to ban those organizations and argued that the measures perpetuate structural white supremacy while claiming to combat white supremacist activity. 

Jurecic sat down with Rodrigo Barrenechea, a visiting scholar at the David Rockefeller Center for Latin American Studies at Harvard University, to discuss the ongoing political crisis in Peru. They discussed the fragile state of Peruvian democracy, former Peruvian President Pedro Castillo’s attempt to dissolve Congress, and more:

Rozenshtein also sat down with Chris Slobogin, a professor at Vanderbilt Law School, to discuss how the traditional legal framework for surveillance is out of date, the importance of taking a flexible approach to what makes Fourth Amendment searches reasonable, and why it’s important for legislatures to pre-authorize any police surveillance techniques:

Stewart Baker, Josephine Wolff, and Dan Schwarcz sat down to discuss their article about the pursuit of attorney-client privilege to protect the confidentiality of forensic reports in cases of cybersecurity breaches:

Jordan Schneider discussed concerns about ByteDance’s commitment to transparency. Schneider also discussed the apparent access by ByteDance’s China-based employees to the data of American TikTok users, plans that ByteDance intended to track the location of specific American users, the influence of the Chinese Communist Party over the company and app, and more:

Stephanie Pell sat down with Tom Wheeler and Adm. (ret.) David Simpson, professor at Virginia Tech, to discuss their new paper. They discussed the 5G cyber paradox, the three specific cybersecurity challenges of 5G technology they described in the paper, and the recommendations they have for addressing these cybersecurity challenges:

Owen J. Daniels analyzed the military’s use of artificial intelligence (AI) and the “revolution in military affairs” framework for understanding the relationship between military technologies, operations, and organization. Daniels also discussed AI’s potential technological applications and the shortcomings of AI outside of a training environment.

Bob Bauer and Jack Goldsmith discussed provisions of the National Defense Authorization Act which President Joe Biden signed into law today, that place new restrictions on presidential authority to dismiss inspectors general, to appoint new inspectors general, and require the president to provide the explicit rationale for the dismissal of an inspector general. 

Curtis Bradley, Goldsmith, and Oona Hathaway discussed the new transparency requirements contained in the NDAA for international agreements including provisions that strengthen reporting requirements, expand publication of executive branch agreements, establish greater centralization of transparency oversight, and more. Bradley, Goldsmith, and Hathaway also discussed a number of exceptions to the new reporting requirements but argued that the provisions will lead to greater transparency. 

And Anderson also sat down with Reynolds to discuss the NDAA and the Consolidated Appropriations Act, two annual pieces of omnibus legislation. They discussed the process that led to this year’s bills, highlighted some of the notable provisions in the bill, and noted some other provisions that were left out:

And that was the week that was.