The Lawfare Podcast: Patreon Edition

President Biden recently authorized the release of almost 1,500 documents related to the JFK assassination. But ten times that number still have had their release deferred. What might be in them? What's holding them back from release? And how did we get here? 

David Priess spoke with journalist and bestselling author Gerald Posner, who wrote the Pulitzer finalist “Case Closed: Lee Harvey Oswald and the Assassination of John F. Kennedy,” and attorney Mark Zaid, who apart from representing government whistleblowers and representing current and former U.S. government officials trying to publish their stories or remediate illegal employment actions, has also been very active in the JFK assassination documents area for some 30 years. They talked about the President John F. Kennedy Assassination Records Collection Act, the work of the review board that the legislation set up, what is in these new documents and what comes next. 

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Merrick Garland has been getting a lot of criticism these days, and a lot of it is less than entirely fair, or at least it's premature. But Andrew Kent, Quinta Jurecic and Benjamin Wittes argue in a Lawfare piece published today that there is at least one matter on which Garland's decision-making is ripe for criticism: He is not speaking enough.

Garland has modeled himself after Attorney General Ed Levi, the first post-Watergate attorney general, and in their article entitled, “Merrick Garland Needs To Speak Up,” Kent, Jurecic and Wittes argue that Levi actually used public speaking as a big part of his strategy to rejuvenate confidence in the Justice Department. Garland, by contrast, has been very quiet. Kent, Jurecic and Wittes hold the two up against one another and argue that Garland should make more of a case for what he's doing than he has so far. This episode is a reading of that article.

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In 2006, al-Qaeda-trained operatives planned and nearly executed an operation to destroy passenger aircraft over the Atlantic Ocean. Because it was discovered and stopped, it did not accomplish its purpose: killing thousands of people in the air and possibly hundreds or thousands on the ground.

Aki Peritz is a former CIA intelligence officer and current adjunct professor at American University who has researched and written all about this transatlantic airliner plot. He has recently published a new book about it all called, “Disruption: Inside the Largest Counterterrorism Investigation in History.” David Priess sat down with Aki to talk about the conspiracy and the heroic efforts by the intelligence services of the United States, Great Britain and even Pakistan to uncover and crush it.

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From May 21, 2016: Four years ago, Anwar al Awlaki—an American citizen—was killed in an American drone strike in Yemen, marking the first targeted killing of a U.S. citizen by the U.S. government. While the attack occurred almost four years ago, the legality, morality and prudential nature of the strike, and others like it that occur nearly daily in a scattershot of countries around the world, remain a subject of much debate.

Last week, Jefferson Powell joined Lawfare’s Jack Goldsmith at the May Hoover Book Soiree for a discussion of Targeting Americans: The Constitutionality of U.S. Drone War, a new book that takes a deep look into the constitutionality of the program. Powell is a Professor of Law at Duke University, and over the hour, he argues that the killing of Anwar al Awlaki under the 2001 AUMF was constitutional, but that the Obama administration’s broader claims of authority are not. He also asserts that American citizens acting as combatants in al Qaeda are not entitled to due process protections. Yet constitutional claims should not be confused with what is moral, or indeed, what is legal under international norms. Those answers, Powell suggests, must be examined through means other than constitutional law.

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On this show, we’ve discussed no end of proposals for how to regulate online platforms. But there’s something many of those proposals are missing: data about how the platforms actually work. Now, there’s legislation in Congress that aims to change that. The Platform Accountability and Transparency Act, sponsored by Senators Chris Coons, Rob Portman and Amy Klobuchar, would create a process through which academic researchers could gain access to information about the operation of these platforms—peering under the hood to see what’s actually happening in our online ecosystems, and perhaps how they could be improved. 

This week on Arbiters of Truth, our series on the online information ecosystem, Evelyn Douek and Quinta Jurecic spoke with the man who drafted the original version of this legislation—Nate Persily, the James B. McClatchy Professor of Law at Stanford Law School. He’s been hard at work on the draft bill, which he finally published this October. And he collaborated with Coons, Portman and Klobuchar to work his ideas into the Platform Accountability and Transparency Act. They talked about how Nate’s proposal would work, why researcher access to data is so important and what the prospects are for lasting reforms like this out of Congress.

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