The Week That Was: All of Lawfare in One Post

The big news this week: Lawfare recently received 501(c)(3) tax exempt status, and Ben reached out to you, our loyal readers and followers, for financial contributions to help make Lawfare better. Just do it, people. You know you mean to. You know you want to. You know you should. The D.C. Circuit Court released a few notable opinions this week: on Monday, it announced its ruling in United States v. Al Bahlul. Wells shared the news. He and Jody Liu then summarized the split decision. Jack noted that “Bahlul appears to be a step in the direction of judicial acceptance of the basic legitimacy of [military] commissions.” Later, Peter Margulies considered the concurring opinion written by Judge Janice Rogers Brown and concluded that “judicial deference” to Congress’s power to codify and interpret international law is best. Steve Vladeck responded to Peter, highlighting “the Article III elephant in the room.” Peter then asserted that Steve’s argument gives too much weight to Article III constraints on military commissions. On Tuesday, the D.C. Circuit Court released its decision in Ralls v. CFIUS. Wells brought us the ruling. Raffaela then provided an analysis of the opinion and its likely impact The government filed its opening brief with the D.C. Circuit Court in appealing the District Court’s ruling in Klayman v. Obama.  Jane examined the arguments made in the filing. Military Commission defense lawyer Sam Morison informed us that the U.S. Court of Military Commission Review denied Omar Khadr’s motion to vacate judgment following the release of the redacted OLC memo in the Al Aulaqi targeted killing. He explained why “the OLC’s analysis directly undermines the theory of criminality the government had been asserting to support the charges” against Khadr. In international affairs: Paul shared news of the crash of Malaysian Airlines Flight 17 in eastern Ukraine. Washington and Lee law professort Russell Miller chronicled the symposium he led last week at the University of Freiburg. Under discussion were the political and legal frameworks that underscore both American and German calculations regarding privacy and national security. The event, which Ben participated in, was timely, given the souring of U.S.-German relations. Taj Moore outlined the recent events that have contributed to this deterioration. Bobby described some of the topics to discussed this week at an Oxford University event on international humanitarian law and international human rights law. In light of recent development in the case against Blackwater, Faiza Patel explained the legal framework which governs the actions of private military contractors engaged in conflict zones. Jack flagged statements regarding the situation in Iraq and Syria made by Attorney General Eric Holder during an interview with ABC. In this week’s Foreign Policy Essay, Jeremy Shapiro, a fellow with the Brookings Institution’s Foreign Policy program, considered “the current semantic confusion” surrounding the U.S. war against “Al Qaeda.” Major General Charlie Dunlap reviewed former Secretary of Defense Robert Gates’s memoir of his time serving in both the Bush and Obama administrations. He writes, “With Iraq in turmoil and U.S. troops heading back there, Duty is essential reading for those who want to understand how and why that is happening, and what it might signal for Afghanistan’s future.” Cody Poplin shared the Lawfare Podcast, which featured a discussion with Bruce Riedel, Senior Fellow and Director of the Intelligence Project at the Brookings Institution, on his most recent book, What We Won: America’s Secret War in Afghanistan, 1979-1989. Stewart Baker brought us this week’s Steptoe Cyberlaw Podcast, which featured a fascinating conversation with David Medine, Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB). Stewart and Medine do “a deep dive into the 702 program and the PCLOB’s report recommending several changes to it.” Ben highlighted a response, published by Washington Post journalist Barton Gellman, to his concerns over the ethics of Edward Snowden’s disclosure of individuals’ personal information and communications. And that was the week that was.