The Week that Was: All of Lawfare in One Post

The “going dark” debate continued on Lawfare this week. Paul provided us with a guest post from Nicholas Weaver of the International Computer Science Institute at Berkeley, who argued that the iPhone—”perhaps the most secure, general purpose communication device available”—is not nearly as impregnable as the FBI suggests. Ben posed “five hard encryption questions” for both the pro- and anti-encryption crowd, on topics ranging from the existence of end-to-end encryption services outside U.S. jurisdiction to just how much consumer preference has influenced the debate.

“Going dark” remained an issue on this week’s Lawfare Podcast: The Aspen Security Forum Mixtape, Volume II. White House Homeland Security Advisor Lisa Monaco, Director of National Intelligence James Clapper, and Attorney General Loretta Lynch weighed in on encryption, as well as on ISIS, the OPM hack, and Guantanamo Bay.

At Ben’s request, Eric Mill offered his thoughts on why it’s time for Lawfare to move to an encrypted connection and migrate to HTTPS. “In short,” he argues, “we live on a very different internet than we did 20 years ago,” and it’s important for websites to use HTTPS not only to protect users’ privacy, but also to shape emerging internet norms.

Jack noted David Sanger’s recent story on the U.S. government’s difficulties in figuring out how best to respond to the OPM hack. He argues that deterrence through retaliation won’t work at this point: not only has the government waited too long to respond, but it’s well known that the U.S. government conducts similar cyber operations against China.

Also in cyber news, Paul posted Bits and Bytes and Wells alerted us to the publication of the National Telecommunications and Information Administration’s proposal to transfer control of the Internet Assigned Numbers Authority. A public comment period on the proposal is now underway,

This week saw the Fourth Circuit’s decision in United States v. Graham, holding that accessing cell site data without a warrant constitutes an unconstitutional search under the Fourth Amendment. Wells provided the opinion and pointed out that it creates a circuit split with the Fifth and Eleventh Circuits. Yishai Schwartz and Andy Wang wrote a helpful overview of the majority, concurring, and dissenting opinions in Graham.

On Wednesday, President Obama mounted a defense of the Iran deal at American University—the same venue in which President John F. Kennedy defended the nuclear test-ban treaty with the Soviet Union in 1963. Cody posted video of the speech, and then noted a suit filed by victims of Iran-sponsored terrorism to halt the unfreezing of Iranian assets.

The president’s speech on Iran was also a topic on Rational Security, as were terrorism during wartime and the end-of-war challenge in the al Warafi case. This week, Daniel Byman fills in for Shane Harris, who has temporarily abandoned the podcast to head off for vacation.

Speaking of that war that, according to the al Warafi decision, has not yet ended, I questioned the continued relevancy of the 2001 AUMF now that ISIS has a highly attenuated relationship with Al Qaeda and may soon be engaged in outright warfare with the Taliban, the other organization included under the AUMF. Daniel Byman also posted this week’s Foreign Policy Essay on “The Limits of Counterterrorism.” Washington’s habit of viewing the Middle East near-exclusively through the lens of counterterrorism, he says, may seriously limit U.S. understanding of the politics and threats of the region.

Gabriel Schoenfeld reviewed former CIA Deputy Director Michael Morrell’s book The Great War of Our Time: The CIA’s Fight Against Terrorism from Al Qa’ida to ISIS, chronicling Morrell’s time at the agency. And Cody let us know about a new issue of the journal Perspectives on Terrorism, focusing on the “intellectual catch-up effort” to understand ISIS.

Aaron Zelin posted a statement from Ahrar al Sham on the death of Mullah Omar, along with this week’s Jihadology Podcast. The topic? The militant group commonly—but incorrectly—known as Boko Haram.

Ashley Deeks told us about a new paper of hers on SSRN that studies how “acts by foreign leaders, corporations, litigants, and peer intelligence services” influence presidential decision-making in the national security arena, influencing or simulating the domestic mechanisms of interbranch checks and balances.

Stephanie Leutert sent a “Kyiv Dispatch.” This time, she talks to a young couple who were displaced by turmoil in eastern Ukraine, suffered what may have been a separatist attack on a bus leaving Kyiv, and have yet to find a steady apartment in the capital city. “You can’t call this living,” says Stephanie’s interviewee, Vladymyr Khlepitko. “We are just surviving.”

Cody explained India and Bangladesh’s recent exchange of 50,000 people as part of the historic Land Boundary Agreement. The agreement ends close to seven decades of diplomatic disagreement between the two countries over what to do with the “enclaves,” small pockets of land held by each country inside the other country’s territory, which date back to British colonialism. Successfully resolving this dispute is not only a major diplomatic victory and perhaps indicative of a detente between India and Bangladesh, he writes, but also an important humanitarian achievement.

And finally, Bobby let us know that the results are in on the 2015 Bobby R. Inman Award for student writing on intelligence. Congratulations to Donald Kretz, recipient of the award and PhD candidate at the University of Texas at Dallas.