Important Questions and Bethan's Rock
How should you wear a button-up shirt?
Good morning
Yesterday on #DogShirtTV, the estimable
and the estimable Mike Feinberg came on to discuss why the Western left is so weird about Russian imperialism.The Situation
In yesterday’s “The Situation” column, the estimable Roger Parloff and I condemn the Washington Post Editorial Board’s recent piece on James Comey’s arraignment as “a failure of moral reasoning,” criticizing its equation of Comey’s prosecution with former Special Counsel Jack Smith’s indictments of President Trump. We question the Post editorial page’s abdication of moral and intellectual leadership.
The problem, rather, is that the Post is describing an escalatory cycle that is almost entirely fictitious. Both sides have not, in fact, contributed to this problem. George W. Bush did not commit serial crimes in office. Barack Obama did not commit serial crimes in office. Joe Biden did not commit serial crimes in office.
Donald J. Trump was credibly accused of committing a series of crimes in office. And when he left office, he allegedly continued to commit crimes. Consequently, the Justice Department under the leadership of a distinguished former federal appeals court judge, appointed a distinguished special counsel who indicted Trump for some of those offenses—not a single charge of which has ever been dismissed because, say, Trump did not commit the crime in question. In doing so, Smith committed no misconduct ever found by any court.
In response, the current president is prosecuting his political foes on frivolous indictments that will not stand up in court and firing the prosecutors who refuse to participate in the charade.
The Post’s motto is “Democracy Dies in Darkness,” but it doesn’t do well in false equivalence either.
Yesterday On Lawfare
Compiled by the estimable Isabel Arroyo.
Keep the National Counterterrorism Center’s Focus Off of Americans
Beth Williams urges Congress to support a provision in the Fiscal Year 2026 Intelligence Authorization Act formally limiting the National Counterterrorism Center’s (NCTC) focus to foreign threats, arguing that Biden-era NCTC intelligence collection on Americans posed steep risks to civil liberties.
Sen. Cotton’s proposal largely mirrors one of the recommendations I made last year in my capacity as a member of the Privacy and Civil Liberties Oversight Board (PCLOB). As part of the PCLOB’s December 2024 Report on the National Counterterrorism Center, I recommended that NCTC revise its implementation procedures to better reflect congressional limits on NCTC’s activities concerning purely domestic terrorism.
As I noted in that report, domestic terrorism poses a serious threat to the American public. But domestic law enforcement—not the NCTC or any other intelligence agency—has the primary mission of threat detection operations within the United States.
Israel, Qatar, and the Limits of Self-Defense
Faisal Kutty argues that the acceptance of Israel’s self-defense rationale for its strikes in Qatar would erode the distinctions of international law and normalize preventative war.
Going forward, the Security Council and regional organizations should reaffirm the inviolability of neutral states engaged in mediation. The law of neutrality, once central to international order, has been neglected in recent decades; reviving it is essential if diplomacy is to function in today’s conflicts. The United States in particular faces a choice: tolerate strikes that undermine its own mediation partners, or take a clearer stand that self-defense claims cannot be weaponized against neutral states facilitating negotiations. Establishing that boundary now could help prevent future erosion of the charter system and protect the fragile space for diplomacy in other conflicts.
The United States Has Always Prepared to Fight a Space War
In the latest installment of Lawfare’s Foreign Policy Essay series, Clayton Swope traces the history of the U.S. military’s relationship with outer space from the Cold War to the present. Swope concludes that a military approach to space is inevitable, that a ban on space military activities would be unenforceable, and that war in space is as permissible as war on the high seas under international law.
For a short time, both the United States and the Soviet Union considered limiting the use of outer space to exclusively peaceful purposes. In a 1957 speech at the United Nations, a senior U.S. official proposed creating an international inspection system to ensure outer space would be used “for exclusively peaceful and scientific purposes.” However, U.S. and Soviet leaders soon realized they could not ignore the central role space played in nuclear deterrence—all ballistic missiles passed through space. A 1959 U.S. space policy stated that space should be free and available for peaceful uses by all nations, while not “necessarily exclud[ing] military applications.” A 1958 proposal from the Soviet Union banning military activities in space also called for a concurrent ban on operating foreign military bases; Soviet leaders worried that reserving space for solely peaceful purposes would leave the Soviet Union at a disadvantage, as the United States could stage short-range missiles at foreign U.S. bases in Europe.
Abrego Garcia v. Noem: A Hearing Diary, Oct. 10
Parloff live-blogged the Oct. 10 evidentiary hearing on whether the U.S. government is holding Salvadoran immigrant Kilmar Abrego Garcia in anticipation of immediate removal or for punitive and political reasons.
The government called one witness: John Schultz, the deputy assistant director of removal for Immigration and Customs Enforcement’s (ICE) enforcement and removal unit. But government attorneys struggled to show that the Department of Homeland Security had taken significant steps toward removing Abrego. While Abrego was notified in September, for instance, that ICE intended to remove him to Eswatini, Schultz admitted that the government did not even reach out to Eswatini to see if it would accept him until Wednesday evening, Oct. 8, two days before the hearing. Furthermore, he acknowledged that he had just learned on the morning of the hearing itself, two hours before testifying that Eswatini had declined to accept Abrego. Schultz maintained that talks were ongoing, however.
Podcasts
On Lawfare Daily, Justin Sherman sits down with Erie Meyer and Laura Edelson to discuss their recent toolkit “Working with Technologists: Recommendations for State Enforcers and Regulators.” They discuss how state enforcers and regulators can hire and better work with technologists, what work technologists are best-suited to help with, and the implications of technologist-regulator coordination for AI.
On Scaling Laws, Mosharaf Chowdhury and Dan Zhou join Kevin Frazier to break down exactly how much energy fuels a single ChatGPT query, why that number is so hard to calculate, and what policies might minimize AI’s growing energy and environmental costs.
Today’s #BeastOfTheDay doesn’t know how to fly yet and keeps falling down:
In honor of today’s Beast, please consider that you also do not know how to fly yet, and unlike today’s Beast, you will never learn. Don’t mock today’s Beast.
Tell Me Something Interesting
As the Smithsonian museums close due to the government shutdown, I—
—was reminded of one of my favorite museum artifacts of all time. It lives in the Poole museum in Dorset, England, and it looks like this:
Why is it one of my favorites? Here’s the museum’s card next to the exhibit:
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