More Thoughts on Democracy in Depth

Plus, the sunflowers are thriving, despite the first vandalism of the season

Good Morning:

I returned from vacation the other day and immediately went to visit the sunflowers. They were thriving, despite the heat.

Yesterday, however, the estimable Connor O’Brien, keeper of the Polonne Sunflower Garden, informed me of our first vandalism of the year. The largest and most developed of the sunflowers had been destroyed.

Try it again, motherfuckers. Try it again:

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Yesterday on #DogShirtTV, the estimable

Holly Berkley Fletcher

and I welcomed the estimable Marty Lederman to talk about the Trump administration’s decision to bomb Iran while I was on vacation and whether or not it was lawful—and whether or not that matters:

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The Situation

In my “The Situation” column yesterday, I contemplated trust and military action with respect to the bombing of Iran:

I am not in principle opposed to Israeli military action to stop the Iranian nuclear program, though I have always leaned against it. I say leaned against it because if someone could persuade me that the Israelis could really pull off a devastating blow against the program that would set it back permanently or for a long time or that could induce Iranian capitulation and agreement to dismantle it, I might favor it.

That person would have to persuade me as well that the costs would likely be relatively low, both in the short term (which I suspect is true) and in the longer term (which I suspect is not true). And that person would have to persuade me further that Iran would not simply reconstitute its program on a covert basis in response and then race to the bomb.

Since laying out the classified information that might indicate such conclusions is unthinkable, the conclusions necessarily rely on trust.

And I don’t trust Bibi Netanyahu.

Second, I am not in principle opposed to American military action in support of Israeli military action to stop the Iranian nuclear program, though I have always leaned against it. I say leaned against it here because if someone could persuade me that the Israelis really had a plausible strike plan and that all it really needed was a few bunker buster strikes by the United States to succeed, I would be tempted. That person would have to persuade me, of course, that U.S. involvement was truly necessary and would likely be decisive. And that person would have to persuade me further that Iran would not have retaliatory capabilities—either in the short term or the long term—that exceed the likely value of the strike.

Since laying out the classified information that might indicate such conclusions is similarly unthinkable, these conclusions necessarily also rely on trust.

And I don’t trust Donald Trump.

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Yesterday On Lawfare

Compiled by the estimable Mary Ford

The Chaos and Cruelty of DVD v. DHS

Quinta Jurecic analyzes the Trump administration’s questionable compliance with court orders, applying this to DVD v. DHS, a case that concerns the Trump administration’s removal of non-citizens to third countries rather than the country of their origin. Jurecic argues that litigation over DVD v. DHS is consistent with the administration’s pattern of legalistic noncompliance in immigration cases.

DVD concerns one aspect of the Trump administration’s effort to effectuate Trump’s promised “mass deportations”—in this case, by removing noncitizens to third countries rather than to their country of origin, sometimes with little or no warning...As the complaint in DVD sets out, in late February 2025, the Department of Homeland Security (DHS) adopted a policy that directed Immigration and Customs Enforcement (ICE) to examine the cases of noncitizens who had previously been released from immigration detention because, for a variety of reasons, they couldn’t be deported. Then, DHS would identify a new country not previously designated by an immigration judge—described as a “third country”—to remove them to.

War Crimes for Fun and Profit

Lindsay Freeman analyzes how the Wagner Group’s Telegram channel of self-documented violence in West Africa has become a strategic weapon of the group. Freeman asks why the group has been treated with relative impunity in spite of the mounting evidence of its crimes, and suggests that law enforcement must act to hold the Wagner Group accountable and prevent its cadre of “war influencers” from broadcasting a persistent stream of videos depicting graphic violence.

Much of this Telegram content depicts criminal conduct or provides evidence of crimes, including both domestic and international crimes. The excessive documentation of the atrocities committed by the Wagner Group on a public platform should, in theory, help efforts to hold the perpetrators accountable. Yet there has been a shocking lack of accountability, or even acknowledgment, of the horrors that online researchers are witnessing on a daily basis.

Defining ‘Rebellion’ in 10 U.S.C. § 12406 and the Insurrection Act

Dan Maurer argues that Congress has a responsibility to clearly define the terms and conditions that trigger a president’s use of emergency powers on American soil, including “rebellion,” in the context of President Trump’s federalization of the National Guard over protests in L.A. Maurer analyzed 10 U.S.C. § 12406, a little-known federal law that has been at the center of the legal controversy surrounding Trump’s actions, and explains how it relates to the Insurrection Act.

Therein lies the problem: Whether the president makes, according to the appellate court, a “colorable assessment of the facts and law within a range of honest judgment” depends on whether those facts meet the statutory predicate conditions, like the existence of a “rebellion.” Congress, however, has not defined those predicate terms—making it difficult to imagine a scenario in which a court, giving strong deference to the president, concludes that his assessment of the facts is not at least “colorable.”

Planning for Protracted Violence with China: Five Questions to Ask

In the latest installment of Lawfare’s Foreign Policy Essay series, Sheena Chestnut Greitens argues that the initial setting and circumstances of a potential conflict between China and the United States will shape how such a protracted conflict could unfold. Chestnut Grietens offers five specific questions to consider that could set the terms of a sustained conflict between the rival nations.

Failure to gain a full understanding of the range and type of potential protracted conflicts the United States could face runs the risk that Washington will first fail to prevent a protracted conflict from emerging, and then find itself in a war it is ill-prepared to fight—let alone win. Different parts of the U.S. military and government, as well as American allies and partners, may end up planning based on different assumptions about the future character of conflict, or the entire U.S. defense establishment may find itself fighting a conflict that is not the narrow scenario for which it has planned, trained, and equipped. Either process could produce lethal gaps in capabilities, authorities, and plans once the United States is engaged in actual conflict.

Podcasts

On Lawfare Daily, Natalie Orpett sits down with James Pearce, Anna Bower, Scott Anderson, and Roger Parloff to discuss legal action in response to President Trump’s decision to federalize the California National Guard and deploy them in L.A, the order to release pro-Palestinian activist Mahmoud Khalil, and the Supreme Court’s decision to deny an application to consider the legality of President Trump’s tariffs.

Videos

On June 23 At 11:30 am ET, I talked to Lawfare Senior Editor Anderson, Lawfare Foreign Policy Editor Dan Byman, and Vice President and Director of Foreign Policy at the Brookings Institution Suzanne Maloney about the American strikes on Iranian nuclear sites.

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Today’s #BeastOfTheDay is the pronghorn, an excellent beast of whom I was unaware until the other day. The pronghorn wants you to know that it is not actually an antelope, though it sometimes referred to as an American antelope. Its relatives are the giraffe and the okapi—from whom it now sad to be continentally separated. Also, it runs really fast—really fast. It’s one of the fastest non-cheetah animals in the world. Its ability to get out of Dodge really quickly may explain why these three pronghorns were not at all troubled by my presence and let me hang out with them for quite a while.

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Additional Thoughts on Democracy in Depth

In yesterday’s dog shirt, I wrote up a few thoughts on the depth and complexity of American democracy and the amount of it that is not under control of the president. I have a few additional points to add here regarding features of American democracy in depth that are just different from other countries. None of this is to claim that democracy cannot deconsolidate here. It very much can. Only that the project of deconsolidating democracy in the United States is a different and more challenging one than doing so in a small, more unitary state.