The Week That Was: All of Lawfare in One Post

Quinta Jurecic and Molly Reynolds discussed a recent Senate Committee on Homeland Security and Governmental Affairs report that details the intelligence failures before and during the Jan. 6 attack on the U.S. Capitol. They analyzed the report’s detailing of intelligence agencies’ inability to recognize the threats posed on Jan. 6, unwillingness to use their legal intelligence-gathering authorities, and failed inter-agency communication. 

Glenn S. Gerstell answered some frequently asked questions about the FBI’s current procedures for electronic searches under Section 702 of the Foreign Intelligence Surveillance Act. 

Hadley Baker shared a livestream of Wednesday’s House Judiciary Hearing on FBI Oversight. The committee heard testimony from FBI Director Christopher Wray and discussed the bureau’s “politicization.” 

Adam Klein and Mark A. Lawrence discussed how the construction of the new FBI headquarters in Maryland or Virginia presents Congress with an opportunity to repair the bureau’s relationship with the public by increasing transparency about the FBI’s decisions and priorities.

Scott Roehm discussed the Court of Military Commission Review’s authorization of the use of torture-obtained evidence in the case United States v. Encep Nurjaman et al. He argued that Section 948r(a) of the Military Commissions Act is a categorical prohibition on evidence obtained by torture in military commissions, and Nurjaman demonstrates the need for the government to rapidly implement an across-the-board solution. 

On the Lawfare Podcast, Scott R. Anderson sat down with Roger Parloff and Anna Bower to discuss the criminal cases Trump is facing, potential future charges against him, how the upcoming election may fit into his legal defense, and more:

Bower recounted the start of a grand jury selection for a potential Fulton County case on Donald Trump’s alleged interference in the results of the 2020 election in Georgia. 

Hyemin Han shared former President Donald Trump’s petition to the Supreme Court of Georgia to quash the Fulton County grand jury’s final report and disqualify Fulton County District Attorney Fani Willis from continuing her investigation into Trump’s alleged attempts to interfere with the results of the 2020 presidential election.

Katherine Pompilio shared the Justice Department’s reply to Trump and Waltine Nauta’s request to delay their trial date in the case regarding the former president’s alleged mishandling of classified documents at Mar-a-Lago. The Justice Department argued in favor of maintaining the current trial date in Dec. 2023.

Shalini Bhargava Ray discussed the Supreme Court’s decision in United States v. Texas which  allowed the Department of Homeland Security to continue to use its enforcement priorities to control immigration flow, finding that Louisiana and Texas lacked standing to challenge DHS’s authority. 

On the Lawfare Podcast, Alan Rozenshtein sat down with Derek Bambauer and Jeff Kosseff to discuss a Louisiana federal judge’s First Amendment ruling in a case alleging that the Biden administration informally pressured social media companies to censor speech. They discussed the background of the case, a recent government motion to stay the injunction pending appeal, and the case’s implications on the relationship between the government and social media companies:

Jen Rosiere Reynolds and Jacob N. Shapiro gave a brief history of Germany’s Network Enforcement Act which aims to make social media platform data available to researchers, and analyzed the possible reasons behind the amendment’s non-use.

Samm Sacks and Peter Swire proposed a framework to analyze the benefits and trade-offs of current U.S. data policy toward China through four policy models: the Digital Free Trade model, the Blocking Adversaries model, the Privacy Law model, and the Data Allies model.

Nathaniel Lubin and Ravi Iyer discussed reasons why technology companies should release their experimentation results in order to improve tech regulation. They concluded that increasing transparency into companies’ design decisions via access to this data will allow regulators to more effectively target harmful product features.

Eugenia Lostri shared the new White House National Cybersecurity Strategy Implementation Plan which identifies five key areas of work: 1) Defend Critical Infrastructure; 2) Disrupt and Dismantle Threat Actors; 3) Hape Market Forces to Drive Security and Resilience; 4) Invest in a Resilient Future; and 5) Force International Partnerships to Pursue Shared Goals.

On the Lawfare Podcast, David Kris and Bryan Cunningham sat down with Eric Goldstein to discuss the U.S. National Cybersecurity Strategy, ransomware, and more:

Sean O’Brien, Scott Shapiro, and Benjamin Wittes shared the second class of Lawfare’s hacking and cybersecurity course, entitled, “Get to Know Your Operating System.” In the class, O’Brien and Shapiro discuss the basics of admin and root access, what kernels are, and more.

On the Lawfare Podcast, Lostri sat down with Charl van der Walkt to discuss the ransomware-as-a-service ecosystem, the impact of the war in Ukraine on ransomware activity, and current law enforcement attempts to disrupt cybercriminal networks:

Also on the Lawfare Podcast, Wittes sat down with Eric Adamson to discuss the 2023 NATO summit, including the resolution of the Swedish-Turkish dispute, NATO’s failure to set a path for Ukrainian membership, and more:

On Rational Security, Anderson and Jurecic sat down with Rozenshtein and Ravi Agrawal to discuss the week’s big national security news stories, including NATO’s annual summit in Vilnius, the Biden administration’s controversial decision to send cluster munitions to Ukraine, Mark Zuckerberg’s launch of Threads, and more:

On Chatter, Wittes sat down with Kori Schake to discuss Schake’s career in national security, her work at the American Enterprise Institute, and the recent NATO summit:

In this week’s installment of Lawfare's Foreign Policy Essay series, Alexandra Stark discussed the nationwide truce in Yemen brokered by the United Nations in April 2022. She argued that the terms of the truce have held even after its formal expiration, concluding that international diplomats should continue what they are doing to bring Yemen closer to a comprehensive peace agreement and to resolve the internal dynamics that perpetuate the conflict.

And Asheesh Agarwal and Matt Perault discussed the deal between the Saudi-funded LIV Golf and the PGA Tour that has raised antitrust and human rights concerns for the U.S. government and potential avenues of response from both policymakers and the PGA/LIV. 

And that was the week that was.