Good Morning:
Friday on #DogShirtTV, the estimable
and the estimable Mike Feinberg joined me to discuss recent reporting on payments to Democratic influencers. Are influencers bound by journalistic ethics? We considered the question:Friday On Lawfare
Compiled by the estimable Olivia Manes
Did the President’s Strike on Tren de Agua Violate the Law?
Scott R. Anderson unpacks the legal questions surrounding the Trump administration’s Sept. 2 strike on a Venezuelan vessel allegedly carrying narcotics, which killed 11 people. Anderson suggests that the strike contravenes traditional understandings of international law and U.S. federal criminal law, with troubling implications for presidential authority under Article II of the U.S. Constitution.
None of this amounts to dispositive evidence that President Trump acted outside his Article II authority in pursuing the strike on Tren de Aragua. Among other factors, the executive branch often receives an exceptional amount of deference on national security decisions, particularly in relation to the use of military force. Perhaps this will be enough for it to carry the day. But at a minimum, by targeting individuals whom the United States has traditionally viewed as civilians, the Trump administration has placed itself well outside the established practice of the executive branch. And doing so brings with it legal risks, including for the president’s constitutional authority.
The Commander in Chief in Congress
Matt Gluck reviews “Commander in Chief: Partisanship, Nationalism, and the Reconstruction of Congressional War Powers” by Casey Dominguez. Gluck suggests that the success of Dominguez’s argument—that Congress’s historically conceived of the president’s commander in chief authority narrowly—is undermined by her reliance on Congress’s statements over its actions in support of her thesis.
The book fits into the emerging literature on “historical gloss” in foreign affairs, which looks to governmental practice to understand the meaning of the Constitution. Dominguez sheds some light on congressional sentiment underlying its actions related to the Commander in Chief Clause. But the book’s value is limited by Dominguez’s elevation of congressional statements above the actions that Congress took as keys to discerning Congress’s constitutional views and, more important, by her reliance on inadequate evidence to support her characterizations of Congress’s understanding of the commander in chief power.
Google Sharpens Its Cyber Knife
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses Google’s recent announcement that it is creating a cyber "disruption unit" as part of a larger trend of private sector involvement in combating threat actor campaigns, the identification of three Chinese companies responsible for the Salt Typhoon cyber-intrusion, ongoing developments in the dispute between Apple and the U.K. government over access to iCloud user data, and more.
Google is in a similar position to Sophos. Products such as Chrome and its Android devices are attractive targets for threat actors. Google's terms of service could be modified to give it the legal wiggle room to behave more aggressively against threat actors. The company has the expertise and depth to manage technical risks from operations that push boundaries, and we doubt that cybersecurity authorities and law enforcement would take issue with the company hitting back against abuse of its products.
Podcasts
On Lawfare Daily, I sit down with Anderson and Professor of Law at Cardozo Law School Rebecca Ingber to discuss the U.S. strike on an alleged “drug boat” traveling from Venezuela and the president’s authority to use lethal force outside of war.
On Scaling Laws, Anu Bradford, Professor at Columbia Law School, and Kate Klonick, Senior Editor at Lawfare and Associate Professor at St. John's University School of Law, join Kevin Frazier, AI Innovation and Law Fellow at the University of Texas School of Law and a Senior Editor at Lawfare, to assess the U.S. and EU’s contrasting regulatory approaches to Big Tech.
Videos
On Sept. 5 at 4pm ET, I sat down with Lawfare Senior Editors Anderson, Anna Bower, Roger Parloff, and Lawfare Public Service Fellow Loren Voss to discuss the Fifth Circuit Court of Appeals’s ruling finding that President Trump’s invocation of the Alien Enemies Act to deport alleged Venezuelan gang members was unlawful, an update on the administration’s efforts to remove migrant children to Guatemala following Judge Sooknanan's ruling in L.G.M.L. et al. v. Kristi Noem, and Trump’s deployment of the National Guard in Washington, D.C. and possibly Chicago.
Today’s #BeastOfTheDay is a little bastard:
In honor of today’s Beast, don’t be afraid to defend your personal space.
Tell Me Something Interesting
On Thursday’s Dog Shirt TV, my father recounted a spectacular anecdote about Thurgood Marshall, Charles Black, and the litigation of Brown v. Board of Education. I decided to see if I could substantiate it.
It turns out that, like most such anecdotes, the details had become somewhat garbled in the retelling, but I have located the primary source, along with an illustrative footnote:
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