The Lawfare Podcast: Patreon Edition

The Office of the Director of National Intelligence has issued a declassified assessment of the origins of the coronavirus, and it’s a bit of a muddle. Was it a lab leak? They don't really know. Was it naturally occurring? They're not quite sure. 

They do know a few things. It wasn't a bioweapon, and we're not going to find out any real answers until China starts cooperating. To chew over the ODNI’s report, Benjamin Wittes sat down with Shane Harris of the Washington Post, who wrote a story about the assessment last week. They talked about what the Intelligence Community could agree on, what it couldn't agree on, why the people with the minority opinion were more confident than the people with the majority opinion, and what we can and can't say about the coronavirus.

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From March 27, 2019: From 1989 to early 2017, Sue Biniaz was the lead climate lawyer and a climate negotiator at the State Department. She was also a key architect of the Paris Agreement on Climate Change, a UN-negotiated agreement designed to mitigate global warming, which went into effect in November 2016. In June 2017, President Trump announced his intention to withdraw the United States from the agreement.

Sue sat down with Lawfare's Jack Goldsmith to talk about the early days of U.S. and international climate action, how the Paris Agreement came into force and the predecessor agreements that gave rise to it, how it was supposed to operate, and what impacts Trump's actions have had on international climate policy.

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From January 5, 2019: The murder of Heather Heyer in Charlottesville in 2017 and other recent events have drawn in the public discourse to the fact that domestic terrorism is not a federal crime in and of itself. Earlier this week, Benjamin Wittes sat down with two experts on domestic terrorism to talk about ways that it might be incorporated into our criminal statutes.

Mary McCord is a professor of practice at Georgetown Law School, a senior litigator at the Institute for Constitutional Advocacy and Protection at Georgetown Law School, and the former acting assistant attorney general for national security at the U.S. Department of Justice. Jason Blazakis is a former State Department official in charge of the office that designates foreign terrorist organizations and a professor of practice at the Middlebury Institute of International Studies. Both have proposed ideas in recent months to recognize domestic terrorism in U.S. law. They joined Ben to talk about their very different proposals for how domestic terrorism might become a crime. They talked about why domestic terrorism is currently left out of the criminal code, their two proposals for how it might be incorporated and how those proposals differ, and the First Amendment consequences of their competing proposals.

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This week on Arbiters of Truth, our series on the online information ecosystem, we’re talking about a subject that doesn’t come up much on the Lawfare Podcast: the Securities and Exchange Commission. Facebook whistleblower Frances Haugen has made waves with her congressional testimony and the many damaging news stories being reported about Facebook based on the documents she released. But before these documents became the Facebook Papers, Haugen also handed them to the SEC as part of a whistleblower complaint against the company. So, we thought we should dig into what that actually means. 

What is the likelihood that Haugen’s SEC filings turn into an investigation into the company? Should Facebook be worried? Evelyn Douek and Quinta Jurecic discussed these questions with Jacob Frenkel, who spent years at the SEC and is now the chair of government investigations and securities enforcement at the law firm Dickinson Wright. He explained how to understand the SEC’s role in cases like these, why whistleblowers like Haugen file complaints with the SEC, and why he thinks it’s unlikely that the agency will investigate Facebook based on Haugen’s disclosures.

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In November 2020, a raid against terrorists in Somalia led to the death of an American working for the CIA Special Activities Center. This, after the Trump administration had eased combat rules and airstrikes in Somalia surged. Now the Biden administration seems to be reviewing its policy toward Somalia and the al-Shabab terrorists there.

David Priess talked about it with Julian Barnes, a national security reporter for the New York Times focusing on the intelligence agencies, and coauthor of a recent article in the Times that uses the story of the hunt for an elusive al-Shabab bomb maker to shine a light on the group's continuing strength and the challenges for U.S. policy. Joining them was former CIA senior analyst Emilia Columbo, now a senior associate to the Africa Program at the Center for Strategic and International Studies, as well as senior security risk analyst at VoxCroft Analytics.

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From March 25, 2017: Between leading the House Permanent Select Committee on Intelligence's first open hearing on Russian election interference on Monday, and sparring with HPSCI Chairman Rep. Devin Nunes over Nunes's odd escapades regarding possible incidental collection of communications of Trump associates, HPSCI Ranking Member Rep. Adam Schiff has had a busy week. On Tuesday, Lawfare and the Brookings Institution were pleased to host Rep. Schiff for an address on "The Role of Congress in Protecting Liberal Democracy." In conversation with Lawfare's Benjamin Wittes and Susan Hennessey, Rep. Schiff spelled out an ambitious legislative program and a vision for revitalizing the power of Congress under the Trump presidency.

If you're interested in reading Rep. Schiff's remarks, Lawfare has published them here in article form.

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From February 25, 2017: Under the oversight of Paul Lewis, the Department of Defense’s Special Envoy for Guantanamo Closure under the Obama administration, the detainee population at Guantanamo Bay went from 164 to 41. But Guantanamo remains open, and the Trump administration has promised not only to halt any further transfers or releases of detainees, but also to possibly bring in more detainees in the future. And that's aside from the fact that recent news reports indicate that a former Guantanamo detainee was responsible for an ISIS suicide bombing in Mosul.

With this in mind, Benjamin Wittes sat down with Paul to discuss his time as special envoy, President Obama's failure to close the detention center, and what’s next for Gitmo under President Trump.

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