A Beast of Particular Stolen Valor

Yet oddly deserving of recognition

Good Morning:

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Yesterday on #DogShirtTV, the estimable Mike Feinberg brought up his current beef with international law people: they act like the American public cares about international law.

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Yesterday On Lawfare

Compiled by the estimable Marissa Wang

Slavery and Birthright Citizenship

Ilya Somin argues that the Supreme Court should reject the Trump administration’s effort to deny birthright citizenship to children of undocumented immigrants in Trump v. Barbara, contending that the government’s argument is in direct contradiction with the Citizenship Clause’s original and historic meaning within the 14th Amendment.

There are many other reasons why the Trump Administration deserves to lose the birthright citizenship case, some of them outlined in an amicus brief by a cross-ideological group of constitutional law and immigration scholars, which I joined. But the link to slavery provides a powerful additional rationale for ruling against the administration’s position, one that negates every one of its arguments. All those theories are at odds with the main purpose of the Citizenship Clause and must be rejected for that reason alone.

Spyware-Based Searches for Domestic Criminal Law Enforcement

Yotam Berger explores how commercial spyware could be used in domestic U.S. criminal investigations and explains why its different capabilities should be governed by distinct legal approaches, including existing frameworks such as the Electronic Communications Privacy Act, Federal Rule of Criminal Procedure 41, and the Fourth Amendment.

The U.S. may find itself following the path of fellow democratic nations that have used, and continue to use, spyware in law enforcement. While the use of spyware is not illegitimate per se (and may even be necessary to enable law enforcement to confront modern crime), any deployment of such tools must occur only after careful policy and legal evaluation. Based on what we know about Pegasus’s capabilities, spyware should not be viewed as a monolithic tool, but rather as a toolbox with distinct capabilities, grouped into three main categories: the ability to intercept live communications, the ability to search saved content, and the ability to surveil physical space using the infected device’s hardware. Each of these categories should be analyzed using different statutory frameworks.

Ahmad al-Sharaa Is Building the State Abu Mohammed al-Golani Promised

In the latest edition of Lawfare’s Foreign Policy Essay series, Sara Harmouch argues that the Syrian transitional government under former jihadist Ahmad al-Sharaa is not institutionally transformative; rather, al-Sharaa’s leadership continues the authoritarian, Sunni-dominant government he promoted during his jihadist commander days.

Personal reinvention, however, is not the same as institutional transformation. Leaders can recalibrate language and adjust tone to meet diplomatic realities. Public messaging shifts with circumstance. What is more difficult to alter is a governing framework once publicly defined—especially when ideas Golani advanced as a jihadist leader can now be tested against the institutions emerging under Sharaa’s presidency. The more consequential question is structural: Does the governing system consolidating in Damascus reflect a break from Golani’s earlier framework, or its realization?

Podcasts

On Lawfare Daily, I sit down with Scott R. Anderson, Eric Columbus, Roger Parloff, and Kate Klonick to discuss the judge’s opinion quashing the government’s subpoenas in the investigation of Jerome Powell, Anthropic’s ongoing lawsuits against the Department of Defense, the decision finding Kari Lake’s running of the U.S. Agency for Global Media unlawful, and more.

Videos

In a lecture on Jan. 21, Laura Field discussed the underlying ideologies of the “hard right” movement, the emergence of reactionary thinkers, the influence the movement has had on modern political discourse, the broader cultural implications, and more:

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Today’s #BeastOfTheDay is a dog who, in 1908, repeatedly performed fake Acts of Valor until it received the investigative attention of the New York Times:

PARIS, Jan. 22.-Apropos of the decision of M. Lepine to employ dog auxiliaries for the patrol of lonely beats in the outskirts of Paris, a good story is now going the rounds concerning a splendid Newfoundland which was a candidate at one of the recent field trials.

The dog is the property of a man who lives on the banks of the Seine, just outside Paris. Some time ago a child playing on the river bank fell into the water and was in imminent danger of being drowned. The dog, hearing the cries and the splashing, leaped over a hedge, ran down the bank and plunged into the stream just in time to rescue the little victim. Naturally, the brave animal was made much of and the father of the child, by way of recompense, presented him a succulent beefsteak. Two days later another child fell into the water and was rescued by the dog. The life-saver received the same caresses and another beefsteak.

Up to this point there was nothing extraordinary. But rescues became more and more frequent. Hardly a day passed but that some unfortunate infant was brought safely to the bank by the dog after an involuntary bath. It began to be suspected that the neighborhood was haunted by a mysterious criminal, and a special watch was inaugurated.

Then the truth came out. It was the dog—the noble life-saver himself—that was the guilty one. Whenever he saw a child playing on the edge of the stream he promptly knocked it into the water, and then none the less promptly jumped in to the rescue. He had thus established for himself a profitable source of revenue.

In honor of today’s Beast, save a child by giving the nearest dog a succulent beefsteak for free.