Good Morning:
A week ago Thursday on #DogShirtTV, the estimable Anna Bower came on to advise me on my entrance to the Dyed Red Hair Club:
The next day on #DogShirtTV, the estimable John Hawkinson showed off what a better staircase he can build than I can:
Last Monday on #DogShirtTV, the estimable Holly Berkley Fletcher and the estimable Kate of the Greek Chorus debated the propriety of asking Abdul El-Sayed to denounce the Muslim Brotherhood:
Tuesday on #DogShirtTV, I gloated at the estimable John Hawkinson about my latest carpentry exploits, and the estimable Holly Berkley Fletcher asked for help with her grout:
Thursday on #DogShirtTV, the Greek Chorus Foundation now accepts Bitcoin:
Recently On Lawfare
Compiled by the estimable Athena Smith
The Russian Bots Went Silent. Or Did They?
Renée DiResta explains that the evidence does not show that Ukrainian drone strikes on Russian Yandex data centers knocked out large numbers of Russian propaganda bots, as a viral story claimed. She notes that the dramatic decline in traffic from Yandex’s main network reflects a drop in web crawler activity rather than social media bots, and that Russian influence operations—which obscure their origins using VPNs and other proxies—may not originate from Yandex. DiResta concludes that the story’s popularity reflects a widespread sense that online conversations are crowded with suspicious or inauthentic accounts.
The Yandex story is appealing because it confirms something many people already suspect: that much of what they encounter online is fake or manipulative. It’s also comforting to believe that one’s noisiest or most aggressive political opponents aren’t even real. The Ukrainian drone story offers the poetic justice of seeing a bad actor get its comeuppance: Ukrainian drones hit Russian infrastructure, and suddenly the internet becomes a nicer place.
America Didn’t Lose Its Rare Earth Industry. It Sold It.
Kirsten Asdal, Tom Koch, and Tao Tan propose a financing instrument—a contingent convertible security that converts into ownership if Beijing weaponizes supply—to rebuild U.S. rare earth supply and blunt China’s leverage. The authors explain that American companies sold off the U.S. rare earth industry for reasons that made economic sense at the time, but that the United States erred in treating it as a market rather than, as China recognized, a geostrategic industry.
Translating this concept into reality raises important implementation questions about statutory authority, precise trigger definitions, CFIUS integration, and corporate governance. We offer the CoCo bond model to stimulate discussions around aligning interests in a market failure and national security context, and we invite the legal, policy, and financial communities to help refine the “plumbing” necessary to make asymmetric financing a workable pillar of U.S. statecraft.
Why Anthropic Is Asking for a Rehearing En Banc
Kevin Frazier analyzes Anthropic’s request for a hearing en banc in the U.S. Court of Appeals for the D.C. Circuit after the Department of Defense designated the company a supply chain risk for refusing to drop their conditions that its technology not be used for mass surveillance or fully automatized weapons systems. Frazier describes the legislative history of the statute, in which Congress was concerned with hostile threats, and outlines principles the government may rely on in their argument.
Anthropic does not contest the Pentagon’s right to discontinue using it on covered projects and, on the contrary, volunteered to help it transition seamlessly to another provider. It simply wants the department to follow procurement laws rather than stigmatizing it as a supply chain risk, a term it contends is associated with malicious actors.
Dissecting Trump’s Deal for Russian Diesel
Scott Anderson details the Trump administration’s decision to waive sanctions on Russian diesel fuel and what potential legal routes the administration may use given other sanctions and a statute banning Russian fuel imports. Anderson concludes that the deal is unlikely to deliver lower prices, and its most serious consequences will be felt in Ukraine, as Putin appears to have convinced Trump that Ukrainian strikes on Russia’s diesel industry have raised global energy prices.
In this sense, the main payoff of the diesel deal may be limited to what President Trump deployed on Truth Social on Friday: a politically convenient talking point, promising relief to U.S. consumers that may never arrive. The fact that global diesel fuel prices have not meaningfully moved in the days since the deal was announced suggests that the broader diesel fuel industry does not seem to view this promise as credible. Meanwhile, the hostile reception the diesel deal has received domestically—including among Trump’s fellow Republicans—suggests it may not be the domestic political boon that Trump may have hoped for.
Gaps in the Deep: How the Law of the Sea Fails the Undersea Kingdom
David W. Opderbeck reviews Elisabeth Braw’s book, “Undersea War: The Battle to Control the Cables and Pipelines That Connect Our World,” and finds that Braw compellingly discussed the network of undersea global communications and energy infrastructure, including the growth of threats to undersea cables from malicious actors like Russia and China. Opderbeck explains that the book could have also explored international maritime policy and questions of market concentration.
Braw ably describes how undersea communications technology developed and how the industry works, but the real strength of her book is in her deeply reported discussion of suspicious cable-cutting incidents over the past five or so years, including ones involving cables serving Norway, the Baltic states, and islands near Taiwan. The geography of these incidents, of course, suggests involvement by Russia and China.
Russia’s Digital Detox Boomerang
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren breaks down recent Ukrainian drone strikes against Russian data centers, the possibility of loosening cyber safeguards on American frontier artificial intelligence (AI), and more.
We think it’s only a matter of time before open-weight models provide the world with cyber capability that tightly leashed American models don’t. Everyone having access to advanced cyber capabilities definitely presents risks, and Bad Cyber Things™ will happen.
The practical policy response here is to loosen safeguards on American frontier models. It’s time to make the most advanced capabilities broadly available to attackers and defenders, and let the chips land where they may.
The Rising Islamic State Threat to Europe and the West
In the latest edition of Lawfare’s Foreign Policy Essay series, Lucas Webber, Peter Smith, and Colin P. Clarke explain how the Islamic State-Sahel Province (ISSP) has evolved from a regional insurgency into a transnational terror hub with a path into Europe. The authors describe how ISSP has built a logistical corridor from the Sahel through Morocco and into Spain to recruit personnel, move money, and transport materials—including in connection with plots targeting Spain.
The emergence of a foreign fighter pipeline between the Sahel to southern Europe has clear implications for European security. To date, European counterterrorism efforts have focused on the Islamic State-Khorasan Province and Middle Eastern remnants of the broader Islamic State network, and less on the threat emanating from the Sahel, despite the steady accumulation of data points suggesting a growing trend. There appears to be only limited visibility into trans-Saharan logistics and a burgeoning Morocco-Spain nexus, with fragmented coordination between the European Union, Moroccan, and Spanish intelligence services, despite the shared challenge of preventing an attack.
Proposed Rules for the Use of Force at or Near Election Sites
Dan Maurer, Steven J. Lepper, and Marc Koblentz argue that the military should publicly release Rules for the Use of Force (RuF)—orders that specify when force can be used against civilians during a domestic deployment—to ease alarm about the federal government’s potential use of the military during the midterm elections. The authors compare the generic Standing Rules for the Use of Force with mission-specific rules and ultimately recommend election-specific RuF.
But this article also offers a way thoughtful military planning can mitigate the pernicious—if not outright dangerous—tactical consequences of such a deployment through clear Rules for the Use of Force (RuF), the domestic equivalent of rules of engagement in traditional armed conflicts. It cannot, of course, prevent the foreseeable undermining of civil-military relations that such a domestic deployment would trigger.
The EU AI Act Mandates AI Incident Reporting—If We’re Lucky
Hannes Bastians and Maarten Herbosch argue that the EU Artificial Intelligence (AI) Act should be interpreted with a strong focus on the AI model regime’s purpose so that serious AI safety incidents or cybersecurity incidents–like OpenAI models escaping their test environments–do not go unreported. Bastians and Herbosch identify areas where the legislation’s legal certainty could be strengthened, including how “serious incident” is defined for frontier AI models, whether near-misses are covered, and whether the reporting obligation reaches internal models.
Absent such changes, we may be more reliant on providers’ goodwill outside of the AI Act’s scope. While OpenAI, for example, recently did publish a framework indicating that it would be willing to share information voluntarily, such reliance comes with its limits. Not all providers may be equally willing to report incidents, and internal or competitive considerations might make a provider change its mind as to how open it wants to be.
Will the Supreme Court Finally Dismantle Bivens’s House of Cards?
Mary Hampton Mason and Laura Katherine Smith describe Nielsen v. Watanabe—an Eighth Amendment case which the Supreme Court will hear in November—and how it could end remedies under Bivens, which allows a federal agent to be sued for violating someone’s constitutional rights. Mason and Smith argue that an end to an already hollowed-out Bivens would be doctrinally sound and necessary for Congress to take action and design real federal constitutional accountability.
Retiring the fiction of individual liability invites reform far more meaningful than briefly reviving Watanabe’s one Eighth Amendment claim. History suggests this must come from congressional oversight, public pressure, political consequences, official-capacity suits for declaratory and injunctive relief, and direct judgments against the United States.
Who, If Anyone, Should Have a License to Kill AI?
Lisa Klaassen and Kevin Frazier explain that kill switches for artificial intelligence (AI) increasingly appear in legislation as solutions to AI threats, but the specifics of who is authorized to control the switch, when the shut off could be justified, and what it would entail are unclear. Klaassen and Frazier recommend greater transparency from labs about their safeguards, research to develop and share mitigations, and increased internal testing.
Fearing the possibility of existential risk, both federal and state officials have proposed legislation to mandate the implementation of kill switches at leading AI companies. In a traditional factory, such a switch would perhaps involve a lever with the power to shut off all the machines in one fell swoop. For AI systems, however, it’s trickier to describe what exactly a kill switch would entail, who would hold the authority to trigger it, and how it would be enforced in practice. The recent surge in interest in such a far-reaching power invites serious scrutiny of these questions.
The Immigration Enforcement Hydra Without a Kill Switch
Chinmayi Sharma explains that it could be tempting to use a “kill switch” to put an emergency stop to the large quantity of information running through automated immigration enforcement infrastructure. However, immigration enforcement’s interoperability—its ability to share data with different systems—makes it difficult to shut off on all fronts. Sharma recommends that subfederal actors procure more information about these connections, provide citizens with meaningful privacy rights, and use state constitutions to secure them.
Interoperability is not inherently unlawful or undesirable. A limited, documented request can resolve identity, prevent errors, and support ordinary public functions. The problem is a design that couples whole-population data flows to durable vendor integrations and supplies no reliable route to see and remove downstream copies. Resistance efforts should make the apparatus visible at the sites where public law can still reach it and dismantle the Hydra at the seams.
Technology, War, and the Limits of Innovation Power in the Middle East
David Goodstone and Eitan Danon describe how Israel and Iran have applied innovation power in current wars in the Middle East, exploiting each other’s weaknesses. Israel used sophisticated, short-term tech in campaigns against Iran like Operation Rising Lion and Operation Roaring Lion, while Iran has utilized cheap and expendable systems. The authors note that domestic factors sustain impasses in Israel, Gaza, and Iran, where politics matter in addition to military power.
Each country’s model of innovation power exploits the other’s weakness. Israel can destroy what Iran has built but cannot compel Iran to change course. Iran can make Israel pay but cannot protect the nuclear, security, and proxy architecture it has spent decades building.
The Unhidden Hand
Julia Curlee argues that Moscow’s campaign to influence the 2016 presidential election was a major success, with Russia’s largest gains coming after the vote from the president it helped elect. Curlee describes what is publicly known about the covert action operation and how the Biden and Trump presidencies have since approached the issue of foreign election influence. She recommends Congress create an election threats office with protected funding and a statutory mission, and warns that foreign interventions are more likely to succeed when beneficiaries have an incentive to hide them.
Moscow has also enjoyed payoffs beyond the original aims identified by the intelligence community, because the man it helped elect shared many of its preferences and worldview. Trump has been solicitous of Putin, despite opposition within his own party, hostile to Ukrainian President Volodymyr Zelenskyy, and skeptical of U.S. assistance to Kyiv in its war with Russia. Trump’s election and the fight over the Russia investigation have also deepened polarization in the U.S. and likely sapped Washington’s ability to keep its commitments to NATO and other allies.
The Insiders Know How Covert Foreign Malign Influence Works. You Should Too.
Katie Kedian lays out a two-part proposal to help Americans recognize covert foreign malign influence: an industry-supported clearinghouse that pools what technology companies and researchers see across platforms, and partnerships with trusted institutions, such as public libraries, to get that information to the public. Kedian explains that although this plan is not a substitute for government action and faces difficulties, tech companies already publicly report on the influence operations they detect and can provide a clearinghouse of data to ground media literacy efforts in knowledge of real influence operations.
The federal government remains indispensable for sanctions, indictments, domain seizures, and other disruptive actions, but those actions often come only after a foreign malign influence operation is well underway. Helping Americans recognize the tactics being used against them can begin much earlier. And, if doing so makes those tactics less effective in the first place, it could ultimately prove as important as the government’s after-the-fact disruptive actions.
Comey Tries to 86 the Seashells Case: Part I
Anna Bower, Eric Columbus, and Molly Roberts analyze former FBI Director James Comey’s motions to dismiss the indictment against him for a post on his Instagram page of seashells arranged to spell out “86 47.” The authors break down Comey’s motion to dismiss the charges because they lacked a true threat—therefore protecting the speech under the First Amendment—as well as his motion to dismiss based on selective or vindictive prosecution.
The Comey prosecution appears to be—to put it mildly—utterly lacking in merit. It is difficult to imagine that it will lead to a conviction. Whether Comey can end it before a jury is sworn in, however, is far from certain.
There’s an old saying in the law: The process is the punishment. Trump would almost certainly delight in seeing Comey behind bars. But forcing Comey to sit in court while a prosecutor presents a felony case to a jury—as weak a presentation as it’s likely to be—might be enough to make the president’s day.
Comey Tries to 86 the Seashells Case: Part II
Bower, Columbus, and Roberts examine two pretrial motions Comey has filed challenging evidence the government intends to present at trial. The trio explain that, in addition to two motions seeking dismissal, Comey is seeking to suppress evidence and an evidentiary hearing under Franks v. Delaware, under which a defendant may be able to challenge the validity of a search warrant based on misrepresentations in the affidavit.
Neither motion would end the seashells case outright. But one could put the government’s own case agent under oath, while the other could provide a rare glimpse into the grand jury proceedings that led to the indictment. If granted, either motion could bring new facts to light that support Comey’s motions to dismiss the indictment—and force the government to defend its conduct well before trial.
OpenAI’s Kazoo-Grade Spying Incident
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren writes about an OpenAI employee’s arrest for allegedly bugging a conference room in the company’s San Francisco office; the security firm NorForge’s report detailing how threat actors are using the Cairn agent in cybercrime; and more.
To us the significant thing here is that threat actors have found a target set where they can automate the entire process, from hacking a site to transferring a victim’s cryptocurrency to an attacker-controlled wallet. Old-school cybercriminals should be worried. AI is coming for their jobs!
Israel’s Destruction of Gaza and the Moral Decline of Zionism
Dov Waxman reviews Omer Bartov’s book, “Israel: What Went Wrong?” and notes that Bartov’s book is a powerful and timely guide to the war Israel has waged in Gaza and the evolution of Zionism. However, Waxman also argues that Bartov does not thoroughly address Palestinians as political actors, how the events of October 7th traumatized Israelis, and does not fully explain how an Israeli constitution could have provided greater rights to Palestinians.
This century-long conflict, however, barely features in Bartov’s book. He largely ignores the Palestinians as political actors and attributes sole responsibility for the perpetuation of the conflict to Israel because Israel is much more powerful than the Palestinians. But this power imbalance does not erase Palestinian agency. Palestinians are not entirely passive and blameless. Zionism has evolved in interaction with Palestinian nationalism, and what Palestinians do influences Israeli politics and Israeli-Jewish public opinion.
Podcasts
On last Wednesday’s Lawfare Daily, Michael Feinberg sits down with author and journalist Ben Macintyre to discuss his new book, “Redwood: The Untold Story of the Cold War’s Most Extraordinary Spy,” about a little-known intelligence coup from the Cold War that changed the strategies of great powers in the Middle East.
On last Thursday’s Lawfare Daily, Anderson sits down with Rachel Alpert and Peter Harrell to discuss the legality of President Trump’s recent announcement lifting U.S. sanctions on Russian diesel fuel.
On Rational Security, Anderson sits down with Daniel Byman, Julia Curlee, and Michel Paradis to discuss Trump’s deal with Putin to import Russian diesel, Yemen’s civil war and recent Houthi attacks on Saudi Arabia, sanctions against the International Criminal Court, and more.
On last Friday’s Lawfare Daily, Peter E. Harrell sits down with Kristen Eichensehr and Ashley Deeks to discuss the U.S. government’s expanded use of tariffs, sanctions, export controls, and investment screening to regulate the economy. The group discusses America’s new “command economy,” what it means for companies and the government, and how increased transparency and oversight could be implemented.
On Tuesday’s Lawfare Daily, I sit down with Anastasiia Lapatina and Jimmy Rushton to discuss the latest news from Kyiv, including the grave rupture in U.S.-Ukrainian relations, reported breaks in intelligence sharing and in Ukrainian access to Starlink, the Russian assault on Ukrainian energy infrastructure, and the impending arrival of winter.
On Scaling Laws, Kevin Frazier sits down with Jerod Tufte to discuss why the courts do not utilize more AI in their operations and what the public should expect from AI as its capabilities grow. The two consider how AI may change our constitutional system and how judges should weigh the risks of adopting new tools with the costs of delaying their use.
On Wednesday’s Lawfare Daily, Kevin Frazier sits down with Asad Ramzanali to discuss the creation of a Cyber Safety Review Board, a mechanism based on the National Transportation Review Board designed to independently monitor cybersecurity incidents; how it would monitor incidents; and what advantages it would have over current independent monitoring firms.
On Thursday’s Lawfare Daily, Renée DiResta sits down with Riana Pfefferkorn and Cyndie Demeocq to discuss the guests’ new research into how existing federal criminal law applies to artificial intelligence (AI)-generated child sexual abuse material , what 71 federal prosecutions reveal about the legal issues created by generative AI, and more.
On Rational Security, Scott Anderson sits down with me, Ariane Tabatabai, and Joel Braunold to discuss next week’s Israeli election and what a new government could mean for Israel’s wars in the Middle East; the recent new lows reached in U.S.-Ukraine relations during the current Trump administration after Trump said he would ease U.S. sanctions on Russian diesel; and the current student protests across France.
On Friday’s Lawfare Daily, Natalie Orpett sits down with Roberts, Loren Voss, Renée DiResta, and Julia Curlee to discuss potential threats to election security and integrity ahead of the midterms. They speak about how they are identifying and evaluating the threats, what impact these threats might have, and what, if anything, can be done about them.
Videos
On Friday, Oct. 16, at 4 p.m. ET, I sat down with Molly Roberts, Anna Bower, Roger Parloff, Eric Columbus and Loren Voss to discuss the D.C. Circuit argument in challenge to the National Guard’s deployment in D.C.; hearings and orders in multiple cases related to Donald Trump’s latest ads; the temporary restraining order in the administration’s ongoing work at the East Potomac Golf course; and more.
On Friday, Oct. 23, at 4 p.m. ET, I sat down with Roberts, Bower, Roger Parloff, and Columbus to discuss developments in litigation against the Trump administration’s policies and more.
Today’s #BeastOfTheDay is Juno the snow leopard, seen here being ambivalent about Halloween decorations: