The Week that Was: All of Lawfare in One Post

Before we go any further, let's take a moment to remember that the moment we’ve all been waiting for will soon be upon us. On the evening of May 7, the folks behind the Lawfare Podcast, the Rational Security Podcast, and the Steptoe Cyberlaw Podcast will be at the Washington Firehouse for a live-taping extravaganza. Come have a beer, watch your favorite podcast personalities in the act, and support Lawfare! Get your tickets here. On Tuesday, the Senate Foreign Relations Committee unanimously passed the Iran Nuclear Agreement Review Act of 2015. Yishai detailed several attempts by Democratic senators on the committee to water down the bill prior to its passage. These amendments, he explained, were actually “a full-fledged assault on the bill’s entire purpose.” Indeed, by Yishai’s calculation, the proposed amendments would effectively allow the president to implement a nuclear deal with Iran immediately and unilaterally. Nonetheless, the Act passed out of committee without these amendments and President Obama, perhaps satisfied with the compromises contained therein or perhaps unwilling to risk a veto override, indicated that he would sign the bill. While Republican legislators were quick to crow about the administration’s supposed capitulation, Yishai posited that, in some regards, the administration may be perfectly happy with the outcome of all this legislative deliberation. Not only does the bill essentially recognize the president’s authority to roll back sanctions “wholesale”---in contrast to what some commentators believe was the waiver authority’s original purpose---it also has diverted attention away from the Kirk-Menendez sanctions bill that was picking up steam and threatening negotiations just a couple of months ago. The Obama administration, then, might be “quite pleased” with the Iran review bill. The New York Times editorial board, however, was emphatically not pleased with it. In an editorial this week, the paper called the Act “reckless.” But in their criticism of the bill, Jack noted, the authors made several key errors regarding it. Among other errors, he pointed out that the bill does not, as the Times claimed, require Congress to vote on a nuclear agreement; rather, it allows Congress to review the deal and, if it wishes, enact a joint resolution blocking the waiver of sanctions. This, and other errors and mischaracterizations throughout the piece, Jack said, make the editorial both factually inaccurate and misleading. Bobby put forth some of the legal issues raised by the United States’s provision of aid to the Saudi air campaign in Yemen. In terms of international law, the fact that U.S. assistance to Saudi Arabia probably qualifies as the use of force raises the question of whether or not the United States can claim Yemeni consent for this use of force. Domestically, the question becomes under what authority is the United States’s use of force justified. The AUMF almost certainly doesn’t stretch to the Houthi rebels, and both Title 50 covert action authority and Title 10 spending authority likewise can’t encompass U.S. assistance activities. That leaves Article II authority, which is by no means rock solid. Another country considering what role to play in the Yemeni conflict is Pakistan. In this week’s Foreign Policy Essay, C. Christine Fair and Ali Hamza argued that Pakistan’s decision on its involvement in Yemen could depend on a Pakistani terrorist group: Jamaat-ud-Dawa. JuD, a long-time collaborator with the Pakistani military and intelligence service, has mounted a domestic messaging campaign advocating Pakistani support for Saudi Arabia. The success of the messaging effort will have a significant impact on Pakistan’s involvement in Yemen. On Monday, the New York Times ran a story describing the internal deliberations in the Obama administration over whether to capture or kill a terrorism suspect with U.S. nationality who is now facing charges in federal court. Ben pulled out some interesting points made in the story and compared the particulars of this case to those in the case of Anwar al-Awlaki. Drone strikes were also the topic of a new report released this week by the Open Society Justice Initiative. The report, which Cody linked us to, is called “Death By Drone,” and uses nine case studies to determine how closely the Obama administration hews to President Obama’s promise that, before he decides to authorize a drone strike, “there must be near-certainty that no civilians will be killed or injured.” The report finds that there are serious questions about how closely the administration follows that directive, and offers several recommendations for reform. Herb Lin discussed the low rate at which the FISA Court rejects requests made by the Justice Department. Critics of government surveillance use this extremely low rate as proof that the FISC is merely a rubber stamp for the government; government advocates, on the other hand, argue that the rate is due to the diligence with which government lawyers prepare their requests. Herb walked a line somewhere in between these poles, noting in an update to his post that about a quarter of applications end up being substantially altered. This figure lent some credence to Herb’s point that perhaps interaction between government lawyers and court staff can help explain the high rate of acceptance. Herb also showed us an NSA document from back in 2000 that, among other things, indicates a belief on behalf of the NSA that it hadn’t lost the crypto wars. Given what we now know, Herb adds, that view wasn’t entirely unjustified. Ben brought us the news that, according to House Majority Leader Kevin McCarthy (R-CA), the Obama administration’s proposed AUMF for ISIS is dead. Ben also noted that Congress’s failure to pass this, or any other, AUMF “arguably constitutes acquiescence to [the President’s] broad claim of authority under the 2001 AUMF.” The 2001 AUMF, then, lives on. Stephen Preston, the Defense Department’s General Counsel, seemed to acknowledge as much in a speech last Friday, Jack wrote. Indeed, by Jack’s interpretation of Preston’s remarks, the administration has stopped its (never particularly strong) efforts to repeal the 2001 AUMF. This interpretation is perhaps most clearly indicated by Preston’s line remark that the administration wants “to tailor the authorities granted by the AUMF to better fit the current fight and the strategy going forward.” That “tailoring,” Jack noted, is a refinement of the 2001 AUMF, not a repeal of it. Paul Rosenzweig pointed us to a new paper he’s published with Michael Chertoff called “A Primer on Globally Harmonizing Internet Jurisdiction and Regulations.” The paper identifies trends that, if left unchecked, could result in the “legal fracturing of the World Wide Web.” The authors conclude that “multilateral agreement on a choice-of-law framework” is crucial to ensuring the stable growth of the Internet. Greg Nojeim argued that the House Homeland Security Committee’s recently-marked-up National Cybersecurity Protection Act is a missed opportunity. The bill lets companies share cybersecurity threat indicators “notwithstanding any law.” That formulation, Nojeim said, is part of the problem; the other part is the bill’s reliance on an excessively broad definition of “cybersecurity incident.” The result is that the bill allows companies to share information unrelated to “cybersecurity purposes” as we would normally conceive of them. Consequently, companies and the government can use that information to investigate minor drug crimes and car theft. “That makes the legislation, intended to be a cybersecurity bill, look much more like a cyber-surveillance bill.” Julius Taranto reviewed Tricia Jenkins’s new book, The CIA in Hollywood: How the Agency Shapes Film and Television. The book, which Taranto found to be “frankly underwhelming,” discusses the relationship between the CIA and Hollywood. Taranto noted that, because news coverage of its operations is generally limited to its snafus, the CIA has an incentive to make sure Hollywood portrayals of the agency are “at least half-accurate, if not cloyingly positive;” the industry, on the other hand, wants to make entertaining product, which often requires flawed protagonists (See, for example, Carrie Mathison of Homeland). These competing incentives leads to an deep, interesting interaction between the Agency and the industry. Jenkins’s book, Taranto wrote, merely scratches the surface of that interaction. Details of the broader relationship between the entertainment industry and the government in general apparently show up in the documents stolen in last December’s Sony hack. And, despite the fact that the publication of these documents represents a massive invasion of the privacy of both the company and those who work there, WikiLeaks has made those documents much more accessible to the public. Ben noted the website’s move, which involves publishing the stolen documents in a searchable online database. “Principled leaking,” indeed. Herb Lin told us about a recent GAO report that posits that the increasing Internet-connectedness of aircraft makes them more vulnerable to hacking. Aircraft, it turns out, have two networks: one for actually controlling the plane, and one for in-flight entertainment. If the two networks remain distinct, vulnerability is limited to someone physically breaking into the control system. But if the two networks interact---say, when the flight control network provides the in-flight entertainment system information on where the plane is---further vulnerabilities arise. A first step in increasing the safety of airplanes from hacking, Herb concluded, would be for the FAA to prohibit such interactions of the two networks. Bobby discussed the indictment of a U.S. citizen accused of traveling to Syria, training with Al Nusrah, and returning to the United States to commit an act of terrorism. The case in some aspects brings to mind the case of Jose Padilla, Bobby explained, though it seems unlikely to trigger the same amount of attention as that case did. Kenneth Anderson reviewed David Scharia’s new book, Judicial Review of National Security. The book is an in-depth study of, surprisingly enough, judicial review of national security, but specifically in the Israeli context. Scharia, an Israeli national security lawyer, explores “how Israeli courts interface and communicate with the political branches of government in the “real time” of a crisis, and with Israeli defense and security agencies.” Ken generally praised the book, calling it “a thorough, polished study---very well written and organized.” Ben spoke with Oula Abdulhamid Alrifai on this week’s Lawfare Podcast. Alrifai was forced to flee Syria with her family in 2005 after receiving death threats from the Assad regime and has since watched as her country has imploded. On this week’s Steptoe Cyberlaw Podcast, Stewart Baker chatted with Dmitri Alperovitch, cofounder of Crowdstrike, and covered recent cyber stories. And that was the week that was.