The Week that Was: All of Lawfare in One Post

Israelis went to the polls on Tuesday and gave Prime Minister Benjamin Netanyahu and his Likud party a decisive victory. Making almost as much news as the election results themselves were the tactics Netanyahu employed to help secure his third consecutive term. After previewing the elections in this week’s Rational Security podcast, Ben noted three of Netanyahu’s more controversial tactics: his intensely partisan speech before the U.S Congress, his race-baiting on election day, and his last-minute statement in an interview that there would be no Palestinian state on his watch. Ben accepted that, if taken individually, these actions could perhaps be explained away, but asserted that, when taken collectively, Netanyahu’s tactics may have profound deleterious effects on the U.S.-Israeli relationship. While Yishai Schwartz agreed with Ben’s conclusion that Netanyahu’s tactics may well harm Israel, he took issue with the widespread characterization of Netanyahu’s statement regarding Palestine as a “reversal.” Yishai argued that Netanyahu’s support for a Palestinian state has always been largely theoretical, contingent upon concessions that no Palestinian partner is likely to make. Consequently, Netanyahu’s “reversal” was more of a prediction---he doesn't think Palestinian leaders will accept his conditions, so he doubts there will be a Palestinian state under his rule---than a change of policy. So, when Netanyahu asserted (after all votes had been cast, of course) that he had not, in fact, changed his position on Palestinian statehood, Yishai did not join in the chorus of commentators criticizing Netanyahu’s disingenuous pandering. Rather, he reiterated his earlier argument and pointed out that claims that Netanyahu isn’t serious about a two-state solution are problematic because of the vagueness of the “two-state solution” concept. Netanyahu may be just as committed to a two-state solution as Palestinian leader Mahmoud Abbas; the problem is that the two leaders take “two-state solution” to mean two mutually-exclusive things. Another controversy coloring the Israeli election was the emerging Iranian nuclear deal. Stephen Haggard detailed how lessons drawn from the failed North Korean Agreed Framework can be applied to the arguments made in Netanyahu’s speech before Congress and the 47 senators’ open letter to Iran. The efficacy of both the speech and the letter depend on the assumption that intentionally torpedoing whatever supposedly unacceptable deal is being reached will help produce a better one. However, the lessons of North Korea, Haggard argued, do not support this assumption. Elsewhere in his piece, he noted that Netanyahu’s speech failed to mention some of the progress already made in limiting the Iranian nuclear program through the Joint Plan of Action. Yishai added that it’s crucial to note the ways in which Iran remains out of step with international norms regarding nuclear programs. While Iran’s failure to implement the Additional Protocol may not constitute a formal violation of international law, it does represent an attempt to avoid scrutiny of its nuclear program. Moreover, by attempting to revert to a laxer version of Code 3.1---a regulation governing reporting requirements---Iran appears to be in direct violation of its international responsibilities. These issues aside, the P5+1 and Iran do appear to be within striking distance of a deal. And while the brouhaha over the Senate’s letter to Iran may be subsiding, domestic wrangling in the United States continues. Last Saturday, White House Chief of Staff Denis McDonough sent a letter to Senate Foreign Relations Committee Chairman Bob Corker (R-TN) responding to a letter from Corker asking if the Obama administration plans to take a deal to the United Nations before it takes it to Congress. Jack gave us his thoughts on the letter, which he read as answering Corker with a qualified "Yes". Jack noted that, while McDonough’s response seems reasonable in that it asks Congress for no more room to negotiate than a Republican Congress could be reasonably expected to give a Republican president, it did not definitively answer whether a U.N. Security Council resolution would impose legal restrictions on the United States. Jack added that the Supreme Court may indirectly affect the outcome of this executive-legislative wrestling match. In its forthcoming decision in the Zivotofsky case, the Court will deal with how the various powers exercised in the conduct of foreign affairs should be divided between the executive and legislative branches. While the issues at play in the case are distinct from those in the Iran dispute, Jack noted that whichever branch is victorious in the Zivotofsky case will, at the very least, see its case for or against the deal (as the case may be) get a significant political boost. Disagreement between the Obama administration and Congress is not, of course, limited to the Iran talks. The AUMF against ISIS (a group detailed in a new book by J.M. Berger and Jessica Stern that Jack recommended) proposed weeks ago by the Obama administration has gone nowhere. Jack provided some reasons for the lack of progress that go beyond partisan gridlock. For one, as Lawfare writers have said since its publication, the AUMF doesn’t really change anything; the current operations against ISIS are supposedly already authorized by the 2001 AUMF, which this AUMF doesn’t touch. Because the proposal changes almost nothing, there’s no urgency for Congress to do anything about it. Finally, because there’s no urgency to do anything about the AUMF, Congress is free to play politics with it. And while members of Congress take this opportunity to grandstand, the Syrian civil war, to which ISIS is party, rages on. Tamara Cofman Wittes wrote about her recent visit to a Jordanian refugee camp housing Syrians displaced by the war. She described the heroic labors of humanitarian organizations working in the camps but noted that the camp’s young Syrians, the population on which a peaceful, stable Syria must be built, need education and opportunities far beyond those which the camp can provide. Wittes quotes one young refugee: “We live in a virtual world … you eat, sleep, wake, go to work, but you are not alive. If you have no chance to advance your hopes, it’s like you are dead.” By providing such educational opportunities, the logic goes, these young, displaced individuals can be dissuaded from joining the violent, radical militias wreaking havoc in Syria. But an education alone is not enough to keep someone from being radicalized. As Western governments have increasingly found in their attempts to stop the radicalization of their citizens, countering violent extremism is a difficult process with no clear best practices. While there may not be a golden bullet to counter violent extremism, Anastasia Norton, Alysha Bedig, and Harriera Siddiq argued in this week’s Foreign Policy Essay, government efforts can nonetheless be improved. By shifting the focus from combatting ideology, which currently receives the lion’s share of attention, to countering behavior, radicalization can be more effectively checked. Wells broke the news that Paul Oostburg Sanz, the Navy’s General Counsel, has been designated as interim Convening Authority for the Guantanamo military commissions, a post he will fill for the second time. As the commissions limp along, another terrorist was recently convicted in a Brooklyn federal court. Diane Webber told the story of how Abid Nasser, a Pakistani man arrested in the United Kingdom while planning a terrorist attack on the United Kingdom, ended up being tried and convicted before a court in Brooklyn. The Brennan Center released a report this week entitled “What Went Wrong with the FISA Court.” Wells linked us to the report, which includes a foreword by former FISA Court judge James Robertson, and summarized its key findings. Marko Milanovic highlighted some interesting aspects of a new report issued by the British Parliament’s Intelligence and Security Committee (ISC), the body tasked with overseeing the GCHQ, a British intelligence and surveillance agency. While he notes that the report unsurprisingly clears the agency of any serious legal violations---the Guardian recently called the ISC the “slumbering scrutineer,” he notes---the report does provide a valuable overview of the current legal regime governing surveillance by British intelligence agencies. The report was commissioned as a result of the Snowden revelations, and this week Ben discovered that, in what was undoubtedly a typographical error, that the Washington Post had fingered outgoing NSA General Counsel Raj De as the man behind those same revelations. All kidding aside, Mr. De has stepped down after three years as the NSA’s top lawyer and Lawfare wishes him the best of luck in his future endeavors. Ben also subjected the New York Times to that same close reading and found that, in an editorial criticizing the extremely light plea deal David Petraeus recently received, the Times appeared to, without providing any proof, accuse Petraeus of routinely divulging classified information to journalists and think tank analysts alike. This imputation of criminality is all the more problematic given that, as Ben hints, the Times may have benefited from the very looseness with classified material that it decries. Speaking of taking liberties with classified information, Ben told us about Samuel Loring Morrison, a man who now has the distinct honor of being the only Espionage Act convict to be convicted of stealing government documents twice. On Thursday, the chairmen and ranking members of both the Senate Armed Services and Senate Foreign Relations Committees sent a letter to Secretary of State John Kerry and Secretary of Defense Ash Carter. The letter, which Jack tipped us off to, describes China’s growing aggression and hegemony in the South China Sea and expresses an interest in working with the administration to develop a strategy for the region. Last week, Ben headlined a Brookings event with Gabriella Blum on the future of violence, a topic which the two discuss in their newly-released book, The Future of Violence: Robots and Germs, Hackers and Drones——Confronting A New Age of Threat. Audio from the event, which also featured Brookings scholar Bill Galston and the ACLU’s Ben Wizner, comprised this week’s Lawfare Podcast. This week’s Steptoe Cyberlaw Podcast featured an interview with Andy Ozment, who manages the unit of the Department of Homeland Security tasked with improving the cyber security of both the private sector and the civilian agencies within the federal government. One of the administration’s initiatives to improve cyber security, the proposed Cyber Threat Intelligence Integration Center (CTIIC), received further clarification with a recent White House memo and fact sheet. Steve Slick, who wrote on the CTIIC earlier in March, described the import of the publications. Cody let us know that Lawfare is looking for a paid intern for this summer. And that was the week that was.