Beast Mystery Reveal

Plus, a train window that looks like a Ukrainian flag.

Good Evening:

Photo Credit: Eve Gaumond

The estimable Eve Gaumond found herself on a lengthy train ride through the province of Saskatchewan, where approximately 13 percent of the population is of Ukrainian descent—and she discovered that the view out her window resembled the Ukrainian flag. She will tell the story of how she came to spend three days on a train tomorrow on #DogShirtTV.

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Today on #DogShirtTV, by contrast, all my estimable co-hosts abandoned me. Fortunately, the estimable John Hawkinson, the Hermione Granger of our Collegium, jumped in to assist me. We talked trolley problems, habeas corpus, and government shutdowns. We talked immigration law and Canadian politics. We talked litigation scheduling and the limitations of PACER. Apparently, I don’t need other co-hosts. John Hawkinson can do everything—except that he doesn’t have a cactus:

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The Situation

I wrote my “The Situation” column in praise of my old colleague Ruth Marcus, who stepped down after 40 years working for the Washington Post yesterday after the new regime spiked a column of hers. Ruth is someone I admire a great deal. It speaks very badly of the vandals now in charge of the newspaper that they have been unable to keep her:

Ruth emerged over the last two decades as one of the very finest opinion writers in America. Her column is—or perhaps I should now say was—always compelling and challenging. And it often noticed things that others missed that became important. (To cite only one example, it was Ruth who first noticed that the immunity motion in the Trump Jan. 6 case was likely to stall the whole case pre-trial for a trip up to the Supreme Court.) Her book on the Brett Kavanaugh nomination, which is scrupulously fair and careful, is the only truly must-read document on the subject. Her work at the Opinions section in the wake of Fred Hiatt’s death was a model of institutional stewardship.

Ruth is that very rare thing—a first-rate reporter who never stopped reporting when she became a columnist, who is also a first-rate legal analyst, a great prose stylist, and a keen observer of politics and policy. She can talk details of the budget with the best OMB watchers and then turn around and spar with Supreme Court clerks over an oral argument that happened two weeks ago.

Ruth has not had a lot of employers. She has worked for the Post since 1984—basically her whole professional life. And if she were someone else, I would worry about her. What do you do after writing a column for the Washington Post for 20 years? What do you do after you have left a brand like the Washington Post after working there for four decades and never really having done anything else?

But the truth of the matter is that I’m not the slightest bit worried about Ruth. She will be fine. She will continue to write what she writes and people will continue to read it, in whatever publication she decides to write it. If she carved her thoughts onto rocks, people would find them and pick them up and read them.

I am, rather, deeply worried about a Washington Post that cannot keep Ruth—a person whose commitment to the institution was as intense as anyone’s I have ever met and who desperately did not want to do what she did yesterday.

Today and Yesterday On Lawfare

Compiled by the estimable Caroline Cornett

First Insights Into the U.S.-U.K. CLOUD Act Agreement

Richard Salgado breaks down the first report on the implementation of the United States’s CLOUD Act agreement with the United Kingdom, which permits U.S. companies to share user data with foreign jurisdictions for purposes of combating serious crime. Salgado discusses the volume of requests from the U.K. compared to the U.S. and the failure of the act to deter foreign governments from enacting restrictive surveillance laws. He recommends four changes to the CLOUD Act that will help fulfill its intended purpose:

There’s no doubt that, given the aggressive action by the U.K. authorities against Apple, there will be calls to abandon CLOUD Act agreements. That would be a mistake. The Justice Department report shows the potential of these agreements as a vehicle through which the U.S. can advance its national interests (like cybersecurity, reducing unnecessary burden on the MLAT system, and advancing the rule of law and human rights). Congress and the Justice Department need to make changes to achieve this potential, but it is in reach.

The Case for a Just Use of the Lafarge Forfeiture in Iraq

Junius Williams argues that the U.S. transfer a portion of global cement manufacturer Lafarge’s assets—forfeited as part of a guilty plea for providing material support to terrorist groups—to the Iraqi government. Williams highlights that the Iraqi state is a more suitable recipient than the current Syrian regime because it has mechanisms to distribute the funds to victims, but acknowledges that corruption and other issues are obstacles to collaboration with the U.S.:

Nevertheless, disbursing the funds to the Iraqi government can be framed in a way that benefits both the U.S. and Iraq. Iraq should remind the Trump administration that the forfeited monies are not taxpayer dollars, so disbursing them does not come with the same political cost as providing new foreign assistance might. To that end, when disbursing funds, the U.S. government should treat Iraq as an implementing partner rather than a direct beneficiary. This might mean, for example, prioritizing Yazidi victims, given that the Yazidi Female Survivors’ Law is administered outside the auspices of the Martyr’s Foundation, as well as Christian minority populations victimized by ISIS. To preemptively address corruption concerns, it could also mean putting the money into a special account at the Central Bank of Iraq, with external audit and monitoring controls.

AI-Generated Voice Evidence Poses Dangers in Court

Rebecca Wexler, Sarah Barrington, Emily Cooper and Hany Farid recommend that Rule 901 of the Federal Rules of Evidence—the authentication standard for admissibility of a voice recording—be updated to permit authentication by witness testimony, but not guarantee it. The authors cite their recent study that found participants could not differentiate between a real person’s voice and an artificial intelligence (AI) clone in 80 percent of cases:

The Evidence Rulemaking Committee should fix this problem by adding the word “may” to Rule 901(b) so that it reads: “The following are examples only—not a complete list—of evidence that may satisfy the requirement [of authenticity]” (emphasis added). This would shift admissibility for all the enumerated examples, including the option to authenticate the identity of a person’s voice by calling a witness to the stand who says they recognize the speaker, to a permissive rule rather than a mandatory one.

What Would It Take to Remove Syria’s New Government From the U.S. Terrorism List?

In the latest installment of Lawfare’s Foreign Policy Essay series, Jason M. Blazakis outlines the three pathways by which the Trump administration could delist Hayat Tahrir al-Sham (HTS) as a foreign terrorist organization (FTO). Blazakis assesses that the most probable approach is a “change of circumstances,” which would require an evaluation of HTS’s goals, links to other groups, and more:

While the FTO review of HTS’s listing status is occurring, policymakers would be wise to extract a range of concessions. This is especially important to pursue because Syria is still on the State Department’s list of state sponsors of terrorism. As such, the Trump administration must get HTS to fight against a possible Islamic State resurgence, destroy any remaining chemical weapons in Syria, and evict Russia’s military from Syria once and for all. If the United States can achieve those policy concessions over the next few months and the U.S. government assesses that HTS and al-Jawlani have snapped the branch that connected it to al-Qaeda and the Islamic State, then the group should be removed from the list of terrorist organizations.

The Legality of Migrant Detention on Military Bases

Chris Mirasola explains that the Posse Comitatus Act and case law on executive power prohibit the president from using the military to detain and deport migrants. Mirasola outlines why three existing legal theories the Trump administration may try to invoke are legally implausible, but notes that there may yet be a legal route by which the administration can use the military to assist with deportations:

The administration appears to be contemplating three avenues to justify migrant detention on military installations: first, as a form of interagency support provided to DHS under the Economy Act; second, as a mission of the Defense Department, carried out in furtherance of President Trump’s executive orders; and third, under the authority of the Alien Enemy Act. Only the first legal theory has a solid foundation in the law, past executive branch practice, and legal precedent.

Pirates, Privateers, and Cartels: Why Profit-Driven Policing Backfires

Peter Neal discusses the history of letters of marque—an obsolete naval warfare practice that authorizes private actors to capture enemy property—and modern parallels such as private military contractors. Neal argues against a proposal to reintroduce letters of marque to combat cartels, citing historical and modern failures of deputizing military functions to private entities:

The same problems that plagued the privateering approach against Caribbean smugglers—lack of oversight, legal ambiguity, diplomatic fallout, and private actors prioritizing profit over public policy—would inevitably arise in any attempt to use letters of marque against drug cartels today. The evolution of U.S. anti-piracy strategy in the 19th century underscores the broader reality that countering well-financed transnational criminal organizations requires coordinated, professionalized state-led efforts, not profit-driven mercenaries.

Podcasts

On Lawfare Daily, Natalie Orpett speaks to Scott Anderson, Anna Bower, and Nick Bednar about the status of the civil litigation against President Donald Trump’s executive actions, including the firing of probationary employees and the Department of Government Efficiency attempting to enter the U.S. African Development Foundation:

On Lawfare Daily (again), Kevin Frazier sits down with Drew Hinkes and Carla Reyes to discuss the evolution of crypto-related policy since the Obama era, the veracity of dominant crypto narratives, and what’s next from the Trump administration on this complex, evolving topic:

On Escalation, co-hosts Tyler McBrien and Anastasiia Lapatina cover the U.S.-Ukraine relationship at the turn of the 21st century, during which Russia reverted back to its corrupt, authoritarian ways and the United States solely focused on terrorism after 9/11:

Events

On March 19 at 5:30 p.m., Tyler McBrien, Anastasiia Lapatina, Max Johnston, and I will discuss the making of Lawfare’s new narrative series Escalation, share behind-the-scenes insights, and explore what lies ahead for Ukraine. Register for the in-person event at the Ukraine House here.

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Today’s #BeastOfTheDay is the fox kit, seen here in triplicate:

Video Source

You don’t have to do anything to honor today’s Beasts. They have all the honor they need. Just enjoy them.

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Regarding Sunday’s Beast…