Operation Battery is Back!

Let’s stock batteries for the winter

Good Morning:

Enough said. Let’s make this happen. The earlier we get started, the more we can do.

---

Yes. It could. Will it? That’s a different question.

Yes. He can. Will he? That’s different question.

Yes. It could be. Is it? That’s a different question.

Can’t make a joke about this one, folks. The answer is ugly.

Anti-gunk stuff will help. Promise.

Not very. But it tastes good.

Yes.

---

Tuesday on #DogShirtTV, I came on the show, puffy-eyed and miserable from an allergy, to give you updates on my staircase and the Greek Chorus Foundation:

Thursday on #DogShirtTV, we finally brought on the estimable Taya:

Friday on #DogShirtTV, the estimable Holly Berkley Fletcher was back in town with an agenda:

---

Recently on Lawfare

Compiled by the estimable Sarah Willrich

Pig-Butchering Scams and the Limits and Promise of Civil Forfeiture

Yotam Berger explains that civil forfeiture investigations, the government’s current favored legal response to pig-butchering scams, are overly reliant on cooperation from international companies and often fail to restore funds to victims, even when considered successful. Berger proposes reforms to the way such investigations are conducted to make them less fragile and more legitimate in the eyes of victims.

After forfeiture, victims may petition the Justice Department for remission. To qualify, they must establish a specific pecuniary loss directly caused by the offense, show that they did not knowingly contribute to it, and demonstrate that they lack another reasonably available source of recovery. The regulations also give the department discretion when calculating losses is too difficult, when the likely payments would be small compared with administrative costs, or when the number of victims and the amount available make distribution impracticable. Those grounds fit poorly onto pig-butchering scams. These cases characteristically involve large numbers of victims, complex laundering, commingled assets, incomplete information, and recoveries that constitute only a fraction of total losses, and victims may need to pay more funds in legal fees to their lawyers, on top of the funds they have already lost.

A Tale of Two Mogadishus

In the latest edition of Lawfare’s Foreign Policy Essay series, Tricia Bacon analyzes the current security situation in Somalia’s capital of Mogadishu, highlighting the gap between the government’s rosy vision of near victory over al-Shabaab and the opposition’s more pessimistic emphasis on the group’s surviving networks. The interpretative gap, Bacon argues, is indicative of continued political fissures in the country which hinder the government’s ability to confront al-Shabaab and will only become more important as external support is withdrawn.

Neither of these Mogadishus is invented. The government’s account is not simply propaganda. It is true that the checkpoints function more effectively, the construction is visible, and al-Shabaab’s attack tempo in the capital has slowed. The opposition’s account is not simply sour grapes. The demolitions have occurred, the center-periphery tensions are producing violence, and the authoritarian drift is felt by people who dealt with a more consultative Hassan Sheikh in his first term. What divides these two Mogadishus is how each side reads the same set of facts; one group interprets them as indicating that the city is experiencing a durable turnaround, while the other sees a temporary, elite-centered tinderbox that could be ignited by multiple sparks.

From Promise to Peril: The U.S. Retreat From Civilian Harm Response

Mae Thompson, Kristine Beckerle, and Luke Moffett consider the Department of Defense’s reversal of progress in recent years on its civilian harm mitigation and response (CHMR) initiatives. They explain that, beyond Trump administration leaders’ rhetoric dismissing concerns over CHMR, key policy developments and reviews have been abruptly halted, even as the need for them remains.

These public policy commitments were wins for advocates who had been highlighting the importance of—and many barriers to—civilians seeking redress. Of particular note was a shift in the department’s understanding of the purpose of response. According to the CHMR-AP and the DOD-I, the fundamental purpose of acknowledgment and response included “expressing condolences” and “helping to address the direct impacts experienced.” This was a significant shift from preexisting policy on compensation, which limited condolence payments to “friendly” civilians and framed the purpose in terms of countering terror and countering insurgency.

There was more to be done, but the fast and furious disruption to CHMR provoked a real sense of whiplash, coming just as efforts had created a real sense of momentum after two decades of slow and arduous progress.

A Senate committee voted to hold Fauci in contempt. Now what?

Jonathan Shaub considers the aftermath of the Senate Homeland Security and Governmental Affairs Committee’s vote to hold Anthony Fauci in contempt for invoking the Fifth Amendment during questioning. Shaub explains that, because a contempt vote is unlikely to overcome the filibuster, any prosecution pursued by the Department of Justice would bypass the standard procedure for contempt created by statute and precedent.

In short, Pirro and Blanche can almost certainly attempt to indict or prosecute Fauci for contempt of Congress. Doing so would depart from past practice and run contrary to precedent, but those considerations may be overcome by political impetus. Fauci could raise the failure to follow Section 194’s dictates in his defense, as the defendants did successfully in the Wilson case. But he would have to go through the pain of a criminal indictment and prosecution to do so.

The Most Important Phrase in GSA’s Revised AI Clause Has No Definition

Jessica Tillipman argues that a revised General Services Administration Acquisition Regulation clause governing artificial intelligence (AI) contracts fails to clearly define what constitutes a “government usage context,” creating ambiguity about what data the clause protects. Tillipman explains that the ambiguity is too consequential to be left to acquire meaning over time through contract administration. Instead, she proposes a functional, three-part test for defining “government usage context” itself.

Of course, whether operational data reveals government use depends on the deployment, architecture, level of aggregation, and agency involved. But fact-sensitive does not mean standardless. Determining whether a price is “fair and reasonable” is also highly contextual, yet the Federal Acquisition Regulation (FAR) does not rely on the phrase alone; it supplies analytical frameworks for applying it. A clause intended for use across GSA’s government-wide vehicles likewise needs a functional test that can apply that discipline to more complex AI architectures.

The FBI proved Comey’s innocence. The DOJ indicted anyway.

Roger Parloff explains recent developments in the prosecution of James Comey for a picture he posted of seashells spelling “8647.” Parloff chronicles the continued attempts by the Department of Justice to prove that “8647” is mafia slang for killing someone, even as almost all the evidence points to the contrary.

Eventually, shortly after the indictment, a man who seems to be the ultimate expert stepped forward. But for the defense.

On July 28, attorneys for Comey submitted a declaration from John Gleeson, a renowned former assistant U.S. attorney and, later, federal judge in the Eastern District of New York, who specialized in organized crime cases as a prosecutor. Gleeson offered his expert opinion that the theory behind the government’s seashells case was “preposterous.” After decades of investigating, prosecuting, and presiding over such cases, he wrote, he had never come across usage of “86” to mean “to kill” “in any way, shape, or form.”

Closing the Front Door: The Case for DOJ’s Bulk Data Security Program

Lee Licata highlights how vast amounts of data on U.S. troops are easily available for purchase, allowing adversaries to track movements without needing to find a security breach. Licata argues that the Justice Department’s Data Security Program should be used to develop a robust regulatory framework to address this vulnerability in ways case-by-case regulation and enforcement cannot.

Privacy law cannot close this gap because it aims to solve a different problem. Consumer privacy regimes are built around individual choice. They provide a person with the right to know what data is collected, to consent or object, to opt out of a sale, or to demand deletion. But the national security risk here does not turn on any one individual’s choices. An adversary does not need to defeat a single person’s privacy settings when it can simply buy 30,000 service members’ records in bulk on the open market. Even a regime of perfect individual consent would leave that aggregate data flow largely untouched, because the danger lies precisely in the bulk, combined, population-scale dataset rather than in any single record an individual might choose to protect. Cross-referenced records reveal patterns no individual file contains, potentially exposing units, installations, supply chains, and command relationships that allow an adversary to target the military population as a system rather than as individuals.

Who Writes the AI Constitution?

Nicolas McMullan and Kevin Frazier discuss what regulation of artificial intelligence (AI) constitutions—documents that contain sets of principles, values, and/or rules that AI models should follow—could look like. McMullan and Frazier argue that AI constitutions contain speech protected by the First Amendment, which limits how far the government can go in regulating them, and consider what more narrow approaches the government could utilize instead, such as requiring certain disclosures, exercising its leverage as a purchaser of AI models, or mandating provisions against criminal conduct.

A constitution, though, is written by identified (or identifiable) people, published under a company’s name, and read and (increasingly) argued over by the public as a statement of values. The expressive interest sits with the humans who write these AI constitutions, whatever statistical use the training process later makes of the text. A values-rich constitution is thus about as unattenuated as anything in the industry. Many of the things that inform model character and behavior are unpredictable, which has bedeviled machine learning scholars for decades. Constitutional AI is an unusual technique in that it allows human authors to act with intentionality ex ante on model character, rather than the more typical process of nudging AI outputs ex post with techniques such as RLHF or safeguards on model APIs.

Exxon v. CIMEX and the Erosion of Foreign Sovereign Immunity

Annie Brett and Cory A. Evans explain the history leading up to the Supreme Court’s recent decision holding that Cuba’s CIMEX cannot invoke sovereign immunity to block Exxon’s suit against it, which alleges that CIMEX continues to traffic in and profit from property nationalized by Cuba in 1959. They break down the case’s core question: whether Title III of the Helms-Burton Act implicitly abrogates Cuba’s sovereign immunity, and argue that the decision erodes the U.S.’s commitments to respecting sovereign immunity and international law more broadly.

With Exxon, the Court has held that Congress can abrogate foreign sovereign immunity without specifically clarifying that it intends to do so. In this way, foreign sovereign immunity is just another legislative privilege, albeit a very strong one based on a special category of international legal recognition.

This philosophical attitude has consequences. Although the United States has been the most powerful country in the world for many decades, following World War II the United States has historically tried to wield its legal leadership through multilateral institutions, when possible, rather than through unilateral demands.

Reviving Article 109: A Legal Path Out of Security Council Paralysis

ShahrYar M. Sharei explains that contradictions dating back to its founding continue to plague the United Nations (UN) Security Council, rendering it ineffective. Sharei argues that now, on the anniversary of the nuclear bombing of Hiroshima, is the time to reform the UN Charter, and he highlights a historical episode when meaningful progress on charter reform was made despite the objections of the Security Council’s permanent members.

The more urgent question, 81 years later, is what that founding paradox has become. The UN Security Council was created in that same coercive, unequal moment—five states granted a permanent veto as the price of their participation—and is now the visible symptom of a charter that has not been meaningfully revisited since 1945. The dysfunction is no longer theoretical. With hundreds of wars and tens of millions dead or injured since the UN’s founding, that dysfunction is now the defining feature of the council’s record—and the clearest measure of its growing irrelevance.

A Political History of the Internet

Mailyn Fidler reviews Fiona M. Alexander, Laura DeNardis, Nanette S. Levinson, and Francesca Musiani’s book, “Geopolitics at the Internet’s Core.” Fidler praises the authors’ detailed case studies of how the internet protocol, the technical rules that allow the internet to operate across the globe, was shaped by political forces. However, Fidler critiques the book’s lack of a strong theoretical frame and sometimes limiting focus on digital infrastructure.

The book is strongest as a record of the geopolitical decisions that states have made about the internet protocol and its associated functions. The book clearly and concisely explains the dynamics of the debate over which fundamental protocol would structure internet communications, the American-born TCP/IP or the European-born OSI, and this portion of the book would be useful for a classroom assignment. The book’s histories of the internet governance institutions that emerged, from the World Summit on the Information Society in 2003 to the Domain Name System (DNS) tensions generated by the Ukraine-Russia conflict in 2022, is impeccable. It will enrich the understanding even of those with considerable prior expertise.

Data Theft Extortion Is Booming! Hooray!

In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses a rise in data theft extortion, why it might be time to reinvigorate the Cybersecurity and Infrastructure Security Agency’s Secure by Design initiative, and more.

The cybercrime ecosystem really does seem to be migrating from encrypting ransomware to data theft extortion. Exact numbers vary, but a number of cybersecurity and risk firms have found data theft extortion rates are up while encrypting ransomware rates are down.

This is good news, and there are a number of potential reasons for this shift.

Victim organizations have gotten better at recovering from backups, for a start. And for cyber criminals, stealing data is less work than building and supporting encrypting malware. The threat of publishing stolen data is a very powerful motivator in certain verticals, too, and that threat can’t be mitigated by maintaining good backups.

Podcasts

On Monday’s Lawfare Daily, I sit down with Eric Columbus, Molly Roberts, and Roger Parloff to discuss the Trump administration requesting the Supreme Court stay the district court’s order halting the enforcement of the mail-in voting executive order, updates on where temporary protective status stands following the Supreme Court’s order, developments in the Reflecting Pool prosecution, the D.C. Circuit blocking the ballroom construction and more.

On Tuesday’s Lawfare Daily, Kate Klonick sits down with Renée DiResta to talk about her new piece on Grokipedia, finding that Grokipedia’s edit-review queue froze around April 24, with no announcement to users or contributors.

On Wednesday’s Lawfare Daily, Scott R. Anderson sits down with Joel Braunold for the latest installment of their podcast series on developments in the Israeli-Palestinian conflict. They discuss the Trump administration’s new plan for Gaza, why Israel doesn’t appear to be on board with it, related developments in Lebanon and the West Bank, and how it is all intersecting with Israel’s impending elections.

On Thursday’s Lawfare Daily, Anastasiia Lapatina sits down with Danylo Mokryk to unpack what’s happened since the firing of Ukrainian Defense Minister Mykhailo Fedorov, including the dismissal of General Oleksandr Syrskyi, Fedorov’s rejection of a hollow “vice prime minister” role, his rise in the polls despite having no formal political ambitions, and what it all means for President Zelensky and the public’s trust.

On Rational Security, Scott Anderson sits down with Alan Rozenshtein, Michael Feinberg, and Loren Voss to talk through the week’s big national security news stories, including cyberattacks on water utilities in at least seven states, the latest revelations about OpenAI’s agents hacking other companies, the cost and implications of the continued National Guard presence in D.C., and more.

On Scaling Laws, Anil Seth joins Kevin Frazier to examine whether artificial intelligence (AI) could ever be conscious. Drawing on Seth’s recent essay, they attempt to define consciousness, develop arguments for and against machine consciousness, assess what the current evidence can and cannot tell us, and what it all means for policymakers and users.

Also on Scaling Laws, Frazier speaks with Matthew Schwartz about how AI is beginning to reshape gastroenterology and how Schwartz’s company is opening new possibilities for earlier diagnosis, personalized treatment of diseases like inflammatory bowel disease, and faster clinical research.

Videos

On Lawfare Live, I sit down with Molly Roberts, Anna Bower, and Roger Parloff to discuss a fired Justice Department prosecutor challenging his firing, a nationwide preliminary injunction against President Trump’s mail-in ballot executive order, the new birthright citizenship order, and more.

---

Today’s #BeastOfTheDay is the hornet, seen here drinking water:

Video Source

In honor of today’s Beast, I (EJ Wittes) was going to quote W. S. Gilbert’s limerick about the man from St. Bees, but apparently there’s no evidence that Gilbert actually wrote it.