Escalation
A podcast about the United States and Ukraine
Good Evening:
For the past year, a team at Lawfare has been hard at work on a narrative podcast series. The podcast, called Escalation, will launch on February 24, the third anniversary of the Russian full-scale invasion of Ukraine. Today we released the trailer.
The series is hosted by
and by Tyler McBrien, Lawfare’s managing editor. I am very excited about it—and will have a great deal more to say about it in the coming weeks.
Speaking of Ukraine, some Ukrainian activists I work with have put together a new group that does theatrical protest activity.
It is called Rebirth Ukraine. They are looking to raise $10,000 for a variety of activities designed to counter Russian propaganda in the United States. I support them and encourage others to do so as well.
I’ll make it easy for you:
Today on #DogShirtTV, I welcomed the extremely estimable Mike Pesca, who came on the show to admire the estimable Anastasiia Lapatina’s estimable baby.
In between bouts of baby-admiration, Mike, Nastya, the estimable Holly Berkley Fletcher, and I discussed the Superbowl, the penny, Trumpism, and other topics less interesting than the baby:
Are The Courts Up To The Situation?
In today’s “The Situation” column, I explore the capacity of the federal judiciary to act as a bulwark against President Donald Trump’s attacks on the rule of law, noting that despite the deficiencies that plague the courts, the judiciary is the only mechanism available to address this “ongoing spree” of lawlessness right now:
The question has been lurking out there for the past three weeks as the new administration has taken step after step that seems flatly at odds with clear laws. The onus of addressing the wave of illegality falls to the courts because Congress—the other coordinate branch of government that could put a stop to things—has shown no interest whatsoever in doing so. While the executive branch has sought to dismantle federal agencies, fire people with statutory protections, and impound or otherwise interfere with funds appropriated by the legislature, the Senate has busied itself confirming the administration’s patently unqualified nominees to run agencies. Congress is useless—at least for now.
Today On Lawfare
The President’s Favorite Decision: The Influence of Trump v. U.S. in Trump 2.0
Jack Goldsmith discusses how the Supreme Court’s decision in Trump v. United States constitutes a “maximalist theory of executive power.” More specifically, Goldsmith explains that the Court’s ruling provides the executive with exclusive power over law enforcement, expands the president’s power to fire executive officials at will, and sets the stage for the Trump administration to claim broad executive authority in its efforts to reshape the government:
I have thus far analyzed the exclusive power rulings in Trump for their discrete influences. But as the constitutional claim in the Federal Workforce EO suggests, the decision’s full significance emerges not just from what it says about individual presidential powers, but from its overall vision of presidential power.
In a nutshell, that vision is expressed (with emphasis added) in a single sentence from Trump: “[U]nlike anyone else, the President is a branch of government, and the Constitution vests in him sweeping powers and duties.” Those sweeping powers, Trump explained, begin with the vesting of “the executive Power,” all of it, in the president. They include broadened enforcement discretion and a broadened removal power. And these powers in turn underlie the president’s broad powers to supervise and direct subordinate executive officials.
The ‘Mosaic’ Method and the Value of CIA Names to U.S. Adversaries
Jonathan Fredman warns that the Central Intelligence Agency’s (CIA) submission of partial employee information to the White House via unclassified channels significantly increases the chance that foreign adversaries can identify these personnel:
Even partially identifying information, such as first names and last initials—whether accurate or pseudonymous—can be aggregated along with other publicly available information to establish the identity of intelligence officers. Hostile nations can use that data to interfere with U.S. intelligence activities, whether by directly challenging those U.S. personnel, enhancing their own capabilities to deny the United States access to information, or crafting disinformation operations to misdirect U.S. activities.
DOGE-ing Questions in Federal Court
Anna Bower reports from a Feb. 5 status conference in Alliance for Retired Americans et al. v. Secretary of the Treasury, concerning the lawfulness of the Department of Government Efficiency’s (DOGE) access to the Department of the Treasury’s payment systems. Bower highlights three key disputed factual issues in the case—including who has access to the data in question, the nature of this access, and DOGE’s role in all of this—and the lack of clarity the government was able to offer about them:
The purpose of the hearing was to set a schedule on the plaintiff’s motion for a preliminary injunction. But Judge Kollar-Kotelly spent much of the hearing in fact-finding mode, peppering a Justice Department attorney, Bradley Humphreys, with questions about the nature and extent of the access provided to the DOGE-aligned individuals. Humphreys, for his part, provided answers that were carefully hedged with qualifying language—and that were often inconsistent with public media reports. Far from clarifying what exactly DOGE and its associates are up to, Humphreys’ responses raised more questions than they answered.
Using AI to Improve the Government—Without Violating the Privacy Act
Kevin Frazier describes how—if implemented correctly—artificial intelligence (AI) can modernize and improve government operations. However, Frazier criticizes the DOGE’s attempts to use AI on the grounds that they likely violate the Privacy of Act of 1974:
Entering PII (personally identifiable information) into an AI system likely qualifies as “disclosure.” Courts have ruled that disclosure covers transferring a record as well as “granting access” to a record. Publication of information on an agency’s website, for instance, qualifies as an unauthorized disclosure. Though it is not known which company’s AI system DOGE is turning to, whichever company that may be has received access to Department of Education records. This may be a closer question if DOGE is relying on a model running locally on federal government computers. However, even if that is the case, the mere act of DOGE members having access to Department of Education records likely qualifies as a prohibited form of disclosure. The act forecloses any “nonconsensual disclosure of any information that has been retrieved from a protected record.”
Building International Partnerships to Combat Foreign Cyberattacks
In the latest installment of Lawfare’s Foreign Policy Essay Series, Julia Dickson and Emily Harding outline how the United States can collaborate with regional partners in Africa, Latin America, and Southeast Asia to coordinate law enforcement and use local resources to combat cybercrime:
A good place to start is by building regional, collaborative law enforcement hubs to combat malicious cyber activity. These hubs should be locally organized and run, but seed funded by the United States and its allies. The hubs should be virtual for the first year and then evolve into brick-and-mortar collaborative spaces to build community and trust for deeper information sharing. Over time, seamless, up-to-the minute collaboration will reduce the dark corners of internet infrastructure where criminals like to hide, and these hubs will prove a low-cost, high-impact way to shore up U.S. alliances in areas of the globe poised for dramatic growth. Initial hubs could be established in key partner-states in East Africa, Latin America, and Southeast Asia, with more regional partners brought on board as the program develops.
The Hawley Act Threatens AI Innovation
Ritwik Gupta and Andrew Reddie argue that the overly broad provisions of the Decoupling America’s Artificial Intelligence Capabilities from China Act of 2025 (DAICCA) will harm American innovation because of the restrictions DAICCA places on open-source software, global AI projects that integrate Chinese researchers, and more:
Section 3(a) of DAAICCA prohibits the import of any AI technology or intellectual property (IP) developed or produced in China. This raises immediate concerns given the extensive integration of Chinese researchers and entities in global AI projects.
Major AI projects—such as PyTorch, the most popular deep learning library used to build neural networks; NumPy, a highly used linear algebra codebase; and even toolkits to perform efficient generation from LLMs such as vLLM—contain code contributions from Chinese researchers and engineers at Chinese entities of interest (Figure 1). American companies and researchers are prolific users of mmdetection and mmsegmentation, libraries for image understanding created and primarily maintained by OpenMMLab, a Chinese organization. Closed-source software is entirely reliant on open-source software—undoubtedly OpenAI’s ChatGPT uses PyTorch, NumPy, and other open-source libraries as part of their closed-source stack.
Podcasts
On Lawfare Daily, I speak to Bower, Quinta Jurecic, and Roger Parloff about various lawsuits targeting President Donald Trump’s executive actions, including DOGE’s attempts to access federal systems, efforts to dismantle USAID, and plans to fire FBI agents and employees:
Today’s #BeastOfTheDay is a baby moose who became a big moose but is still a baby moose:
In honor of today’s Beast, barge into your father’s house and eat his potted plants. This will be good for your relationship. It will also be adorable. It will raise no concerns about anyone’s health or welfare.
Tell Me Something Interesting
Last Saturday marked the 621st anniversary of an important historical event. EJ Wittes reports.
The Korean Annals of the Joseon Dynasty records the following entry for February 8th, 1404, the 4th year of the reign of King Taejong:
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