The Week That Was

The Week That Was: All of Lawfare in One Post

By Alex Potcovaru
Saturday, July 15, 2017, 8:04 AM

Benjamin Wittes, Jane Chong, and Quinta Jurecic examined how the Donald Trump Jr. email story and the recent news on Russian contacts from The Wall Street Journal expose the growing cracks in no-collusion narrative. 

Wittes posted the Rational Security podcast, in which the gang discussed the Trump Jr. meeting, Mosul’s liberation from ISIS, and the Putin-Trump G20 meeting. There’s also some of the best Hamilton quotes ever—and secret Jim Comey tapes courtesy of Susan Hennessey.

Helen Klein Murillo and Hennessey provided an in-depth look at the Computer Fraud and Abuse Act and what it could mean for possible criminal charges in the Russia investigation.

Elizabeth McElvein analyzed how public polling on the Russia investigation and Americans’ assessments of the validity of intelligence community analysis reflect a growing polarization that degrades trust in the independence of the intelligence community and undermines fact-based national security policy.

Additionally, Wittes conducted his own poll that showed only 17 percent of Americans believe President Trump is telling the truth about his interactions with former FBI Director James Comey.

And while there has been much talk of foreign interference on Executive Branch-related issues, Darren E. Tromblay argued that Congress suffers from a unique vulnerability to influence campaigns directed by foreign governments. 

On Wednesday, the Senate Judiciary Committee was scheduled to hold a hearing on the nomination of Christopher Wray to serve as Director of the FBI. In preparation, Wittes posted twenty questions he suggested the committee ask Wray. The video version of some the questions is here, as is the link to Wittes's and Hennessy’s column about the Wray nomination on the [email protected] feed. They wrote that the Senate should emphasize the independence of the office and consider signalling that Trump’s decision to fire Comey and replace him with Wray, a member of his own party, is unacceptable.

Wittes and Jurecic liveblogged the hearing, during which many Senators didn’t appear to treat the situation with particular gravity. In a subsequent analysis, Wittes criticized the lawmakers and noted that they did not adequately address Wray’s ability to serve effectively following Comey’s firing. Still, Wittes said that given Wray’s hearing performance and the current circumstances, the Senate should confirm him as the next FBI Director. However, the next administration should consider immediately appointing a new director untainted by Trump’s actions and from political party opposite the new president.

Andrew Kent considered whether binding law could help resolve concerns about the independence of department officials who serve at the pleasure of the President.

Following his G-20 trip last week, Donald Trump tweeted about developing an “impenetrable Cyber Security unit” with Russia. Lawmakers on both sides of the aisle rapidly rejected the idea, and Trump seemed to retract the proposal later that day. Given the episode, Paul Rosenzweig argued that cyber cooperation with rivals like Russia remains a bad idea for U.S. security.

Recent weeks have also seen controversy grow around Moscow-based cybersecurity product Kaspersky, with senior U.S. intelligence officials voicing concerns. Paul Rosenzweig noted a Bloomberg Businessweek story alleging that Kaspersky has been working with Russian intelligenceincluding developing products for the FSB and working on joint projects with the spy agency. Kaspersky has refuted the article’s claims.

Matthew Kahn posted this week's Lawfare Podcast, featuring Wittes’s interview with Matt Tait about WannaCry, NotPetya, and preventing similar ransomware attacks in the future.

At the end of June, the UN Group of Governmental experts failed to reach a consensus on the application of international law in cyberspace. Ashley Deeks argued that even so, the U.S. can take unilateral steps to enshrine legal norms by continuing to use domestic criminal prosecutions for cybercrimes.

Introducing his recent Hoover paper, Duncan B. Hollis examined how the US has pursued different norms, including GGE consensus and mutual agreements on cyber-espionage, to alter China’s behavior in the digital realm.

Stewart Baker posted the Steptoe Cyberlaw Podcast where the crew interviewed Jim Miller, co-chair of a Science Defense Board panel about the group's recent report on U.S. cyberconflict posturing. They also discussed Trump’s Warsaw speech, conflict between the EU and Google, Chinese regulation in cyberspace, and several warrants and gag orders that have been served on Facebook.

In the U.K., the recent Investigatory Powers Act restructured the nation’s surveillance framework. But Scarlet Kim and Mailyn Fidler argued that the framework does not adequately meet the standards set forth in U.S. Department of Justice legislation. They say this discrepancy could undermine U.S. ability to incentivize cross-border data request reform in partner states.

In travel ban news, last Friday the Ninth Circuit dismissed Hawaii’s appeal of the District Court’s denial of its motion to clarify the Supreme Court’s recent ruling. Peter Margulies wrote that while the episode was a slight stumble for Hawaii, the Ninth Circuit provided clear guidelines for how to move forward. 

Rosenzweig argued that how one conceptualizes the question of immigration fundamentally defines one’s view as to how it should be addressed. He said that a floated potential reorganization of the federal visa and refugee process illustrates the point.

In the Middle East Ticker, J. Dana Stuster covered the partial Syrian ceasefire stemming from U.S.-Russia discussions at the G20 and the major challenges of rebuilding Mosul after its recapture from ISIS. He also discussed Turkish demonstrations against authoritarian policies and the British High Court’s decision that selling arms to Saudi Arabia designated for its fight in Yemen is legal.

With news this week that Gaza’s Hamas leaders and former Fatah strongman Mohammed Dahlan have struck a power-sharing agreement, Beverly Milton-Edwards analyzed the context and implications of a development that was previously unthinkable.

In this week’s Foreign Policy Essay, Jacob Olidort argued that the U.S.'s “zero-tolerance policy” towards terrorist presence in a country is actually a mistake, pointing to Jordan’s success in combatting terrorism as an example of a successful strategy that does not require complete terrorist removal.

Daniel Byman discussed the threat posed by frustrated individuals who hoped to travel abroad to fight for ISIS but instead remain in their home countries.

Julian Ku argued that the U.S. missed an opportunity to redirect the South China Sea dispute when the Obama Administration did not assertively support the findings of last year’s arbitral tribunal that declared many of China’s actions illegal.

A group of Twitter users blocked for their expressed political views by the @realDonaldTrump account are suing the President, Sean Spicer, and White House Social Media Director Dan Scavino for alleged violations of their First Amendment rights. In a unique legal argument, they claim that the President’s Twitter account has become a “public forum” and thus that their prevention from reading or commenting on the account violates their free speech. They are represented by the Knight First Amendment Institute at Columbia University, which is also a plaintiff to the suit. Robert Loeb and Michael Linhorst discussed the case on Lawfare.

A different group of Trump associates are also facing a lawsuit, in this case the Trump campaign itself as well as campaign associate Roger Stone. In a complaint filed Wednesday, two Democratic Party donors and one DNC staffer allege invasion of privacy after DNC emails leaked by Wikileaks revealed their personal information. They claim the defendants coordinated with the Russian government on the hacking and leaking of the emails.

Bobby Chesney and Steve Vladeck posted the National Security Law Podcast where the professors discussed the D.C. Circuit’s ruling in Jaber v. United States and the political question doctrine, the criminal law implications of the Trump Jr.-Veselnitskaya meeting, and the recent developments at the military commissions at Guantanamo.

The Office of the Director of National Intelligence released documents on the “Gates Procedures,” policies regarding the release of information about members of Congress and their staff.

Rosenzweig noted an interesting criminal case in Ohio in which the prosecution will be permitted to use the defendant’s pacemaker records to contradict his version of events. The case could have significant implications for the use of evidence found in the “Internet of Things.”

And that was the week that was.