Duolingo Italian Gets Morbid

It used to talk about food and shopping

Good Evening:

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Yesterday on #DogShirtTV, the estimable Holly Berkley Fletcher, the estimable Alicia Wanless, and I took questions from the Greek Chorus and each other about the situation after Trump’s coup in Venezuela:

Then, in the evening, the MARA Book Club convened in its secret rites of winter. There were togas. There were rituals in a basement. And there was a discussion of Ari Ali’s film, “Ben Between Africa”:

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The Situation: One Judicial Opinion That Sums Up Everything

The Situation on Friday contemplated the deposition testimony of former Special Counsel Jack Smith.

Today, let’s reach back to a nearly-month-old opinion by Judge Paula Xinis of the U.S. District Court for the District of Maryland.

The opinion ordered the release of one Kilmar Abrego Garcia—the El Salvadoran man who was wrongfully removed from the United States and dumped in the notorious CECOT prison in his home country, then brought back under indictment in Tennessee, and whose civil litigation Judge Xinis has been supervising in Maryland since last spring.

The opinion got a flurry of attention when Judge Xinis issued it—both because it finally caused Abrego to walk free and because of the extraordinary evidentiary record it cited of government lies and misconduct in the case.

It didn’t get enough attention.

The opinion is worth a close read a month later.

The opinion brings together, in a brief 31 pages, a number of distinct themes that have presented themselves in litigation—civil and criminal—involving Trump administration actions.

At various times over the past year, these litigations have underscored the lawlessness of administration action; they have highlighted the targeting of political foes for vindictive and retributive reasons; they have featured defiance of court orders; and they have featured outright lying both by lawyers and by officials of client agencies to the courts.

Rarely, however, have all of these themes come together with such an unambiguous evidentiary record, fleshed out with such an economy of words.

Consider first Judge Xinis’s core ruling—which is that the government has held Abrego, and deported him to foreign detention in a notorious prison, without any valid order of removal. “Respondents have never produced an order of removal despite Abrego Garcia hinging much of his jurisdictional and legal arguments on its non-existence,” she writes. “Indeed, Respondents twice sponsored the testimony of ICE officials whose job it is to effectuate removal orders, and who candidly admitted to having never seen one for Abrego Garcia. Based on this, the Court concludes that no order of removal exists.”

Pause over this for a moment.

Abrego was picked up on the street, deported to a foreign prison, returned and then held in immigration detention for months all without a valid order of removal. This is not a technicality. The order of removal is the legal basis not merely for the deportation of a person from the United States but for his detention antecedent to that removal.

The government does not argue in response that a valid removal order exists. “Instead,” the judge summarizes, “they urge the Court to construe the [immigration judge’s] withholding [of removal] decision as an implied order of removal…”

But an order granting withholding of removal just is not an order of removal. It is an order forbidding removal to a particular country. Construing a withholding of removal as impliedly ordering removal is kind of like construing a stay of execution to impliedly impose the death sentence it temporarily halts.

Pause next over the vindictive nature of the detention and the attempts to remove Abrego to any number of African countries with which he has no relationship when Costa Rica has long been willing to take him.

Judge Xinis notes that the government “acknowledged that the only legitimate ground to hold Abrego Garcia was to effectuate removal.” And removal to a country other than El Salvador has been possible at least since this past summer—when Costa Rica made clear it would welcome him. For his part, Abrego has expressed willingness to go to Costa Rica, meaning that if the goal were really removal, that could happen any time.

But the government doesn’t just want to remove Abrego. It apparently wants to remove him to a country where he doesn’t speak the language and with which he has no cultural connection. And it is willing to forgo quick removal to a country in which he is willing to resettle by way of accomplishing this punitive goal. The government in Abrego’s criminal case had offered a plea deal in which Abrego would get deported to Costa Rica in exchange for a guilty plea—a step it took with Uganda hanging over his head. But Abrego turned that down. And apparently, the government doesn’t want Abrego to get to go to Costa Rica without first exacting its pound of flesh.

People tend to think of the Trump administration’s abuse of the justice system to punish political enemies as focused on high profile big fish—people like former FBI Director James Comey and New York Attorney General Letitia James. And that’s certainly one side of this particular coin. But the other side is people like Abrego, whose case embarrassed the president and featured prominently in an Oval Office meeting with a foreign head of state. The administration is litigating tenaciously not merely to deport Abrego, not merely to prosecute him, but to use his deportation to punish him for not pleading and for becoming an irritant in the administration’s grand plans for mass deportation. That’s not what deportation is for. And it’s not what deportation detention is for either.

The contortions through which the government went to avoid sending Abrego to Costa Rica take up a substantial portion of the opinion to elucidate. Some highlights:

• “Abrego Garcia next appeared at the Baltimore ICE Field Office as directed on August 25, 2025. . . . He was immediately taken into ICE custody, and according to DHS Secretary Noem, he was ‘being processed for removal to Uganda’ instead of Costa Rica.” But “[i]n the days that followed, Respondents took no steps to ‘process’ Abrego Garcia for removal to Uganda, ostensibly because of his claimed fear of persecution and torture in that country.” An official later testified that the government “had asked Uganda to take Abrego Garcia, but it ‘ultimately said no.’”

• “On September 5, 2025, Respondents notified Abrego Garcia’s counsel that they now would remove him to the South African country of Eswatini…Within days, Eswatini learned of Respondents’ notice to Abrego Garcia and it bit back. On September 11, 2025, Eswatini’s spokesperson, Thabile Mdluli, announced that ‘the Government of Eswatini ha[d] not received any communication regarding this person,’ and did not have any agreement with the United States to receive Abrego Garcia.” It later came out at a hearing that the government “had not formally asked Eswatini to accept Abrego Garcia until the Wednesday night before the Friday evidentiary hearing.”

• “[T]he night before the hearing, Respondents notified Abrego Garcia’s counsel that he would now be removed to yet a third African country, Ghana. . . . But once this purported designation to Ghana became public, Ghanian Foreign Minister, Sam Okudzeto Ablakwa, immediately announced that ‘Ghana [was] not accepting Abrego Garcia. He cannot be deported to Ghana,’ and that this position ‘has been directly and unambiguously conveyed to U.S. authorities.’”

• After the evidentiary hearing but “before the Court could formally rule, [the government] notified Abrego Garcia and the Court on October 24, 2025, that now they intended to remove him to yet a fourth African country, Liberia. . . . Liberia evidently agreed to accept Abrego Garcia on a ‘strictly humanitarian’ and ‘temporary’ basis, with promises to not to persecute, torture or refoul him.” The government “justified removing Abrego Garcia to Liberia because it was ‘the only state’ willing to accept him. . . . They told the Court that Costa Rica ‘does not wish to receive’ Abrego Garcia any longer, and that Costa Rica ‘would not simply accept’ Abrego Garcia.

As Judge Xinis puts it, “Respondents serially ‘notified’ Abrego Garcia—while he sat in ICE custody—of his expulsion to Uganda, then Eswatini, then Ghana; but none of these countries were ever viable options, and at least two had not even been asked to take Abrego Garcia before Respondents claimed supposed removal to each.” The judge continues:

At the same time, Respondents did not take any steps to remove Abrego Garcia to the country which had offered to take him, Costa Rica. This inexplicable reluctance seemed at odds with continued detention for purposes of third-country removal. So the Court asked repeatedly during oral arguments to address the disconnect.. . . and twice compelled testimony to that effect. . . . These orders were ignored without justification.

The government’s statement about Costa Rica brings us to yet another recurrent theme in Trump-era litigation this opinion highlights—the one in which the government simply lies to courts.

Because as Judge Xinis makes clear, this statement was a bald-faced lie—or, as the judge puts it, “when the Court sought information about Liberia and Costa Rica so [as] to fairly assess the validity of Abrego Garcia’s claims, Respondents did not just stonewall. They affirmatively misled the tribunal.” In fact, she writes, “Costa Rica had never wavered in its commitment to receive Abrego Garcia, just as Abrego Garcia never wavered in his commitment to resettle there.” Indeed, she continues, “Within 24 hours, Costa Rica, through Minister Zamora Cordero, communicated to multiple news sources that its offer to grant Abrego Garcia residence and refugee status is, and always has been, firm, unwavering, and unconditional.”

And when Judge Xinis notes that her orders requiring explanations were “ignored without justification,” she is bringing out a fourth major theme that has shown up again and again in these cases: non-compliance with court orders. This is a matter somewhat different from, but closely related to, the theme of candor before the tribunal.

At various times, because she had lost trust in the government’s factual representations, Judge Xinis ordered the government to produce a witness prepared to testify as to the underlying facts of the diplomatic negotiations. And at various times, she notes, these orders were not followed. On page 9, for example, she writes that:

Respondents produced one witness, Deputy Assistant Director of ICE Enforcement and Removal Operations, John Schultz (“Schultz”). . . . . Contrary to the Court’s order, Schultz was not prepared at all to discuss Costa Rica’s offer to accept Abrego Garcia as a refugee. Schultz candidly admitted he had not even seen Costa Rica’s August 21, 2025, correspondence, and he had “no knowledge” about whether the Respondents had done anything to commence removal proceedings to Costa Rica.

Later on, during the Liberia episode, the government produced another witness:

At the hearing on November 20, it became evident that once again, Respondents defied this Court’s orders. They simply refused to prepare and produce a witness with knowledge to testify in any meaningful way. [The witness produced] candidly admitted, for example, that he had no prior involvement in Abrego Garcia’s case and spent approximately five minutes preparing to testify. [He] also shared that none of Respondents’ attorneys had discussed this Court’s order with him or showed him its contents. . . . Nor did [he] understand the purpose of his testimony. Then at the hearing, Respondents showcased [his] ignorance about the content of his Declaration pertaining to Costa Rica. As the pointed questions of Respondents’ counsel made clear, [his] lack of knowledge was planned and purposeful.

It is rare that a single judicial opinion condenses so many of the key pathologies of the government’s approach to litigation in a single place in a readable format without particular intrusion of complex law or even factual dispute.

Judge Xinis has been among the most skillful judges in managing the government’s mendacious approach to litigation over the past year. She has been careful. She has been tough. She has been surefooted. And this opinion should not have gotten lost in the holiday cheer and been a one-day story. It’s an important statement that likely won’t be her last word on the subjects it addresses.

The Situation continues tomorrow.

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The Situation

I actually forgot to post Friday’s “The Situation” column, in which I consider a few reasons why Republicans in the House of Representatives chose to share video of a tense private deposition with former Special Counsel Jack Smith. It seems weird to post two full-length The Situation columns in the same dog shirt, so I’m just linking to this one here:

The deposition format, as opposed to a hearing, actually favored Smith. Dispensing with the normal five-minute rule of House hearings—under which members give speeches and struggle to put together coherent lines of questioning—each side had one hour of questioning at a time to engage in lengthy colloquies with Smith. Republicans used a shocking amount of that time to whine about Smith’s acquisition of telephone toll records of members of Congress. They used much of the rest to pick nits about picayune aspects of the circumstances of Smith’s appointment, his lack of respect for Trump’s busy schedule in requesting hearing dates, his refusal to allow Trump to review classified discovery in the comfort of Mar-a-Lago, and even the supposed allergy of big law firms to representing Trump or hiring Republican legislative staff.

Smith, meanwhile, gamely defended both the substance and the procedural aspects of his investigation and his prosecutions of the president. It was a quiet rout. And who exactly races to release video of his own ass kicking? And why?

I can think of only a few possible answers to this question.

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The Last Few Days On Lawfare

Compiled by the estimable Isabel Arroyo

The Chinese Military Is Built for Politics, Not Fighting Wars

Timothy Heath argues that excessive attention to China’s military hardware leads analysts to overestimate China’s ability to win a war with the United States. Heath draws a distinction between “political” and “warfighting” militaries and describes how China’s insecure leadership, untested operational capabilities, and politicized military could reduce their chances of success in a direct military conflict.

Like Iraq, Russia, and, frankly, most militaries in the world, the People’s Liberation Army is a political military—not a warfighting one. Every aspect of the PLA has been optimized to uphold Chinese Communist Party (CCP) rule. Its mission statement, the so-called historic missions, states that the PLA’s top priority is to “resolutely uphold the leadership of the [CCP] and the socialist system.” This shouldn’t be surprising, given that the PLA is the armed wing of the CCP. The political nature of the Chinese military is also evident in its leadership, structure, and organization, all of which prioritize party control and political loyalty above professional competence. For example, politically trained commissars share authority with commanders; party committees must approve all major command decisions; and military personnel spend up to 40 percent of their training time in political indoctrination, in which soldiers must study speeches and commentaries from CCP press on topics ranging from economic development to Marxist ideology. In short, the PLA’s research, training, operations, and activities all prioritize political work or at least allocate a large amount of time and resources to the cultivation of political loyalty.

The Key Challenges of Governing Commercial Spyware

Elaine Korzak identifies three core issues that hamper international progress on regulating commercial spyware, as well as how stakeholders can leverage existing policy levers and current political momentum to address those issues.

Between human rights harms, threats to national security, and malicious use, the unconstrained proliferation of commercial spyware technologies poses a “global policy problem” and has been identified and acknowledged as such by a broad swath of governmental and nongovernmental stakeholders. Numerous efforts by governments and nongovernmental stakeholders to tackle the issue have failed to provide effective or comprehensive governance responses. Recent initiatives, including the Pall Mall Process, are bound to yield limited progress as well, unless three fundamental challenges to regulation are acknowledged and addressed. Doing so will require significant policy changes and leadership on the part of states. Otherwise, efforts will fail to bring fundamental breakthroughs in governance and will continue to result in marginal adjustments of the kind we have seen thus far.

Foreign Terrorist Designations Pose Civil Liberties Concerns

Michael Vandergriff warns that the State Department’s designation of four loosely organized “Antifa-linked” groups in Europe as foreign terrorist organizations creates an avenue for the Trump administration to characterize domestic political activity as linked to foreign terrorism, which could empower the executive to invoke broad counterterrorism authorities that are likely to cause civil liberties concerns.

Trump’s loose use of the term “Antifa” as a catch-all label for Americans engaging in protest activity creates the risk that the new designation of FTOs could be used to justify criminal investigations. By stretching a statute built for global terrorist networks to encompass marginal foreign groups with no relationship to the United States, the administration can manufacture a foreign nexus and thereby unlock counterterrorism authorities that could never be used against domestic political activity on its own.

Military Neutrality Is Fidelity

Emphasizing the importance of soldiers’ allegiance to constitutionally designated civilian authorities, Jason Smith argues that structured dissent and resignation—not discretionary, officer-initiated resistance—is the proper response to military orders that appear unlawful or anti-democratic.

The difference between structured dissent and resistance is more than a matter of semantics. Resistance, whether through quiet disobedience, bureaucratic delay, or subtle circumvention of intent, has no place in a professional military. It undermines lawful authority and invites similar behavior among subordinates. Structured dissent, by contrast, employs the established procedures and policies of the institution to raise concerns, clarify intent, and ensure legality. It operates within the chain of command and can be carried out with purpose, transparency, and urgency. Resistance, by its nature, is covert, susceptible to subversion, and corrosive to trust and discipline. One preserves institutional integrity; the other erodes it.

Germany’s Far-Right on Trial

Annette Weinke reviews Jacob Kushner’s “Look Away: A True Story of Murders, Bombings, and a Far-Right Campaign to Rid Germany of Immigrants,” which chronicles the rise of neo-Nazi terrorism in Germany and the role of Beate Zschäpe, a terrorist who was convicted in 2018 of murdering immigrants. Weinke calls attention to Kushner’s emphasis on the unwillingness of German authorities to see the anti-immigrant murders for what they were and echoes Kushner’s warning that U.S. authorities should not ignore the dangers of white supremacist terrorism.

Based on a broad range of sources, including interviews with family members, records from federal and state parliamentary inquiries, trial transcripts, and media reports, Kushner’s book grapples with a number of core questions, all of them extremely vexing and disturbing: How could it happen, that “blinded by their own prejudice” and 80 years after the Holocaust, “some white Germans could still be radicalized to the point of carrying out racist mass murder”? Why did Germans—whose ancestors murdered millions of Jews and other minorities during World War II and who liked to think of themselves as not only having atoned for this past but also having learned the right lessons from it—ignore the emergence of a terrorist far-right scene and then blame the immigrant victims for the racist violence committed against them? Finally, the book explores the possibility of a link between the disregard for hate crimes against so-called foreigners and guest workers (Ausländer und Gastarbeiter) and the blind spots in Germany’s Holocaust-centered memory culture.

‘Me Considero Prisionero de Guerra’: Maduro Arraigned in Federal Court

Katherine Pompilio reports on Venezuelan President Nicolás Maduro’s Jan. 5 hearing at the Southern District of New York courthouse, where he and his wife were respectively arraigned on four and three counts related to drug trafficking and possession of destructive devices.

Hellerstein then asks Maduro to enter his plea to the indictment, to which he responds, “I am innocent. I am not guilty. I am a decent man. The constitutional president of my country.” Pollack, on behalf of Maduro, clarifies that his client’s not guilty plea applies to each of the four counts in the indictment.

With Maduro officially arraigned by the court’s deputy clerk, Hellerstein asks Flores to rise. She does, and identifies herself as the “first lady of the Republic of Venezuela.” Like Maduro, Flores speaks Spanish and uses an interpreter. Flores also waives her right to a public reading of the indictment, identifies her counsel standing beside her, and confirms she is aware of her rights as Hellerstein has read them to her. The judge then asks how Flores pleads to the charges against her—counts two, three, and four. “Not guilty” she says, “completely innocent.”

The Sde Teiman Crisis and the Assault on Israel’s Rule of Law

Amichai Cohen and Yuval Shany examine Israel’s multi-stage judicial scandal that began with a notorious, video-documented incident of prisoner abuse at Sde Taiman improvised detention facility. Cohen and Shany explain how a military advocate general’s (MAG) choice to secretly authorize leaking the video—and then cover up the leak—has fueled not only a battle between different ideological factions of the Israeli government to oversee the MAG’s investigation, but also a broader crisis for Israel’s rule of law.

While the question before the court involves a standard quis custodiet ipsos custodes (who guards the guards) problem, what is at stake is far more than just a jurisdictional squabble over the conduct of internal investigations. Justice Minister Yariv Levin’s aggressive challenge to Attorney General Gali Baharav-Miara’s authority to oversee the investigation of the MAG capitalizes on a military justice scandal to advance a broader political agenda: the systematic weakening of Israel’s nonelected legal gatekeepers. Beyond this concerning implication, the current crisis may also hinder Israel’s ability to defend itself against accusations of war crimes brought on the international stage.

Podcasts

On Lawfare Daily, Eric Columbus, Quinta Jurecic, and Molly Reynolds join Natalie Orpett to discuss the fifth anniversary of the Jan. 6, 2021 attack on the U.S. Capitol. The four discuss what Congress has done, what it hasn’t, and how we should understand the legacy of Jan. 6—so far.

On Scaling Laws, Kevin Frazier sits down with Ziad Reslan to talk about iterative deployment, OpenAI’s approach to testing and deploying its models. Reslan explains the rationale behind iterative deployment and discusses the extent to which it has worked as intended.

In a live conversation on Jan. 4, I sat down with Dana Stuster, Loren Voss, and Scott R. Anderson to discuss the Trump administration’s attack on Venezuela and the operation that led to the capture of President Nicolás Maduro and his wife, Cilia Flores. You can access this episode in its original form as a live video discussion here.

On Lawfare Daily’s year-end Ask Us Anything edition, Anderson, Voss, Anna Bower, Eric Columbus, Kevin Frazier, Jakub Kraus, Natalie K. Orpett, Roger Parloff, Molly Roberts, and I answer listener-submitted questions on everything from presidential immunity and artificial intelligence (AI) regulations to domestic military deployments.

On Rational Security, Bower, Tyler McBrien, and I join Anderson to discuss listener-submitted topics and object lessons, including parallels between the lead-up to the Iraq War and the recent escalation in the Caribbean, what sphere of influence Western Europe is in today, how to reverse growing tolerance for illiberal democracy, and whether my martial arts challenge to Putin is still on.

On Scaling Laws, Frazier and Alan Rozenshtein sit down with Connecticut State Senator James Maroney and Neil Chilson to analyze how federal and state governments regulated—and did not regulate—AI in 2025.

Announcements

The Jan. 6 Project now holds five years of Lawfare analysis related to the Jan. 6, 2021 attack on the Capitol and the government’s response.

Documents

Isabel Arroyo shares the transcript of former Special Counsel Jack Smith’s closed-door testimony on Dec. 17 before the House Judiciary Committee, which focused on the appropriateness of Smith’s criminal investigations into President Trump.

Videos

Laura Field, author of “Furious Minds,” taught her second lecture on the intellectual movement that has emerged around Trumpism, the factions competing to shape its ideology, and the cultural dynamics of the movement.

On Lawfare Live, I sit down with Bower, Parloff, Roberts, Columbus, and Feinberg to discuss the Supreme Court’s recent decision on domestic National Guard deployments, Judge Howell’s rejection of a challenge to the Trump administration’s $100,000 H1B visa application payment, developments in Kilmar Abrego Garcia’s criminal case, and more.

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Today’s #BeastOfTheDay is the seal, seen here experimenting with vocalizations.

Video Source

In honor of today’s Beast, make some noise.