The Week That Was

The Week that Was: All of Lawfare in One Post

By Jordan Brunner
Saturday, March 18, 2017, 8:42 AM

This week, President Donald Trump saw his revised travel ban enjoined by federal district judges in Hawaii and Maryland, the latter of which the Justice Department has appealed. Peter Margulies examined the Hawaii court’s injunction against President Trump’s refugee ban and highlighted the flaws in the Maryland court's injunction. Josh Blackman produced a three-part essay which analyzed the travel ban from the statutory and separation of powers perspective in Part I, the Due Process Clause perspective in Part II, and the Establishment Clause perspective in Part III.

Benjamin Wittes posted the “Guns, Butter and Palace Intrigue” edition of Rational Security:

Robert Loeb argued that there was never a national security need for the travel ban, while Ben and Quinta Jurecic asked within the context of the judicial rulings on the travel ban what happens when the judiciary doesn’t trust the president’s oath of office.

Meanwhile, Jane Cong discussed sanctuary cities this week in a four-part essay. She examined Trump’s executive order on sanctuary cities in Part I, explained sanctuary jurisdiction in Part II, answered the question of whether Trump can condition federal funds in the way set out in his executive order in Part III, and concluded by analyzing whether § 1373 of the Immigration and Nationality Act unconstitutionally commandeers the states in Part IV. In addition, Paul Rosenzweig asserted that Trump’s border wall will lead to reduced security.

Russell A. Miller examined how to balance privacy and security on surveillance in Germany. Susan Landau wrote that the FBI might just agree with her about security risks and going dark.

Quinta Jurecic flagged the Justice Department’s press release about its indictment of Russian operatives and criminals in the Yahoo hacking case, Nicholas Weaver described how Wikileaks was once again able to shape the media’s discussion of its leaks. And Grayson Clary discussed how a new study by the RAND Corporation adds data to the Vulnerability Equities Process debate.

Stewart Baker posted the Steptoe Cyberlaw Podcast: “What Cybersecurity Experts Tell Their Moms about Computer Security.”

Benjamin Wittes and Jack Goldsmith posted an announcement of the next Hoover Book Soiree: Graeme Wood’s The Way of the Stranger: Encounters with the Islamic State.

Guantanamo received a lot of attention this week. John Bellinger provided some observations from his time in the Bush administration during the creation of prison at Guantanamo Bay, Cuba to argue that Guantanamo should be closed, while Steve Vladeck expressed disagreement with John on two issues in his discussion of Guantanamo. Paul Lewis provided advice to the Trump administration on the continuing need to close the Guantanamo Bay detention facility.

At Guantanamo, the military commissions were back in full swing these past few weeks. Up first, Emma Kohse chronicled delays in discussing the USS Cole and arguments over evidence exhibits in the 3/8 session of the week’s military commissions coverage. Chris Mirasola recounted the debate over the timeline for discovery in the 3/9 session, and Alex Loomis discussed motion sickness and medical side effects in the 3/10 session.

Alex Loomis recounted the presentation of witnesses who collected and were custodians of evidence from the Cole bombing at the 3/13 session of this week’s military commissions, while Nora Ellingsen discussed the continued testimony on the Cole bombing in her coverage of the 3/14 session. Lastly, Jordan Brunner chronicled data dumps, carsickness, and mystery witnesses in the 3/7 “time warp” session.

Quinta Jurecic flagged a letter by Senate Democrats asking Attorney General Jeff Sessions to confirm whether the Justice Department gave up its only copy of the SSCI Torture Report to Judge Lamberth. And she also posted the Lawfare Podcast, featuring a conversation between Jack Goldsmith and former Director of the National Counterterrorism Center Matt Olsen on the current state of national security:

Daniel Bynam asked whether lone wolf terrorists can be stopped.

Bobby Chesney commented on the CIA’s apparently revived authority to conduct drone strikes, and analyzed the detention of a U.S. citizen in Iraq as a form of “proxy detention.”

J. Dana Stuster provided the “Middle East Ticker.”

In the Foreign Policy Essay, Darya Dolzikova examined the Iran factor in the changing U.S.-Russian relationship.

Jordan Brunner discussed how Trump can understand the national security issue of climate change in his review of the new documentary The Age of Consequences.

Jared Dummitt and and Eliot Kim chronicled the formal end of the Obama-era “pivot to Asia,” while highlighting Secretary Tillerson’s pivot to Asia this week in “Water Wars.”

Isabella Uria and Tianyi Xin described what China’s coal ban is, and what it isn’t.

Benjamin Haas examined whether North Korea’s use of VX nerve agent to assassinate Kim Jong-nam violated international law.

Jack Goldsmith discussed the Trump onslaught on international law and institutions.

Elena Chachko discussed EU sanctions and international humanitarian law in her examination of the Court of Justice of the European Union case, A v. Minister van Buitenlandse Zaken.

John Bellinger commented that the Alien Tort Statute case Doe v. Nestle has been dismissed again.

Jack Goldsmith argued that White House counsel Donald McGahn should have pre-empted the issue of Gen. Flynn’s foreign agent status during the transition.

Paul Rosenzweig reflected on Preet Bharara’s decision to force the Justice Department to fire him rather than resign.

Bob Bauer flagged a paper he recently wrote entitled “The National Security Lawyer, In Crisis: When the Best View of the Law May Not Be the Best View.”

Finally, Susan Hennessey and Benjamin Wittes expressed their gratitude to Emily Bazelon for her thoughtful profile of Lawfare in the New York Times Magazine, and Quinta Jurecic posted an event announcement about Representative Adam Schiff’s upcoming visit to the Brookings Institution to discuss the role of Congress. 

And that was the week that was.