Good Morning:
Because sometimes you just need to deliver hundreds of blue and yellow balloons to the Russian embassy—just because it’s Ukrainian flag day and because tomorrow (which is to say today) will be Ukrainian Independence Day. My spies will report in today about how many of the balloons have been popped by mysterious vandals.
Monday on #DogShirtTV, the estimable Holly Berkley Fletcher and I bewailed the existence of mice, discussed the estimable Julia Curlee’s Atlantic article, and announced the resumption of Operation Battery:
Tuesday on #DogShirtTV, the estimable Holly Berkley Fletcher and I welcomed the estimable DeeceX, our on-call Texas politics expert, to explain what’s going on with Big Bend National Park:
Wednesday on #DogShirtTV, the estimable Anna Bower was in town, which meant it was time for some hot gossip!
A note on avian monogamy (from EJ Wittes): It’s not just the eagles. Scientists used to think that most bird species were monogamous. Then they developed bird paternity testing. As it turns out, about 90% of bird species are dirty, dirty cheaters. For shame, birds, for shame.
Thursday on #DogShirtTV, I planned my next karaoke night, the estimable Holly Berkley Fletcher ranted about the DSA, and the estimable Joel from the Greek Chorus wanted advice about his feces:
Friday on #DogShirtTV, the estimable Mike Feinberg had some thoughts on comic book movies, and a group of intelligence agency veterans discussed the counterintelligence risks posed by Natalie Harp.
Recently On Lawfare
Compiled by the estimable Sarah Willrich
What’s So Special about a Special Grand Jury?
Anna Bower discusses the inner workings of special grand juries and their structures, and considers what it might mean that Jeanine Pirro has empaneled one in D.C. Bower argues that the special grand jury’s defining feature, the ability to issue public reports, is subject to significant limitations that could keep it from delivering the political win Pirro may be hoping for.
But the feature that makes special grand juries genuinely unique in the federal system is their power to issue a public report. That sounds unusual today, but there is a long common law tradition of grand juries doing just that. Early English and colonial grand juries got into the practice of issuing informational reports as their role expanded beyond the traditional power of bringing criminal charges. Into the mid-19th century, grand juries in some jurisdictions could report on a wide variety of matters concerning public officials, civic affairs, or other investigative matters. A report could, for example, criticize behavior of public officials that was condemnatory but short of criminal.
Chasing Surveillance Powers, Canada Risks the CLOUD Act Deal It Needs
Richard Salgado argues that Canada’s proposed Bill C-22 may harm its chances of securing a deal with the U.S. under the CLOUD Act. Salgado warns that the bill’s attempts to compel U.S. companies to build surveillance capabilities into their products for Canadian law enforcement could alienate the cybersecurity-focused U.S. government, potentially jeopardizing a deal that would provide more stable access to the cross-border evidence Canada seeks.
A joint framework with the United States would allow Canadian officials, in appropriate circumstances, to seek electronic evidence directly from U.S.-based providers. The United Kingdom’s experience under its CLOUD Act agreement with the United States confirms what Canadian law enforcement and intelligence services already know: A CLOUD Act agreement is a “critical tool” for combating serious crime, including terrorism, fraud, threats, and extortion. Canada and the United States began formal negotiations in 2022, but no agreement has been reached. Securing a Canada-U.S. CLOUD Act agreement should be the primary goal of any Canadian policymaker seriously concerned with effective law enforcement and national security.
The U.S. and Lithuania Clash Over Belarusian Potash
Katsiaryna Shmatsina analyzes the mounting tensions between the United States and Lithuania over Lithuania’s enforcement of EU sanctions on potash exports from Belarus. Shmatsina explains that U.S. pressure forces Lithuania to choose between appeasing its key security partner and risking strengthening the Russian ally on its border, sidestepping the EU in the process.
Until recently, the official line from Vilnius was that there was no pressure from Washington to reopen the potash transit routes. However, behind closed doors in May, Foreign Minister Budrys acknowledged that “pressure is emerging.” For now, Vilnius carefully maintains its public stance while internal leaks expose the uncomfortable reality of mounting U.S. pressure. It is difficult not to wonder if the Lithuanian leadership is questioning the risks of defying Washington, as they likely weigh whether remaining firm on sanctions could jeopardize U.S. security guarantees and the overall quality of the bilateral relationship.
In the Line of Fire: Legal Risks for Tech in Conflict Zones
Adam Hickey, Veronica Glick, Rohith George, and Rachael O’Grady explain that technology companies whose infrastructure, such as data centers, may have both civilian and military applications face a range of threats when operating in conflict zones. The authors consider what international humanitarian law leaves unclear and how contract law may provide protections for companies.
Subject to any force majeure clause or other contractual mechanism that may excuse performance, the state entity remains liable for breach in accordance with the terms of the agreement. The practical enforcement of those contractual rights, however, may be affected by doctrines of sovereign immunity. Although many jurisdictions recognize exceptions to immunity for commercial transactions, the scope of those exceptions—and the extent to which they permit proceedings against a state or enforcement against state assets—varies considerably. In the United States, for example, disputes with federal agencies are governed by statutory regimes such as the Contract Disputes Act. Other jurisdictions apply their own sovereign immunity frameworks, which may affect the forum, procedure, or available remedies.
Fighting While Talking: The Iran War Enters Its Bargaining Phase
Julia Curlee and Ariane Tabatabai explain that the war with Iran has entered a bargaining phase where the parties use military force and diplomacy in tandem to seek a favorable negotiated settlement. Curlee and Tabatabai argue that clarity on control of the Strait of Hormuz, the ability of each side’s leadership to sell a deal at home, and potential for allies to act as spoilers combine to determine whether a durable end to the war is possible—and that a deal must address all three issues to hold.
Washington holds the stronger hand on paper: It is a nuclear-weapon state with the world’s most sophisticated conventional military and installations around the world, including in Iran’s backyard. It also has the power to cripple Iran’s disastrous economy further or offer it a lifeline. It can reimpose the naval blockade the memorandum lifted, restore the sanctions it eased, fund reconstruction, and—as the 90-target night showed—inflict damage Iran cannot answer blow for blow. But even U.S. firepower has limits, and the early-August pause in strikes came amid Pentagon warnings about depleted munitions stockpiles.
What the U.S. truly lacks is patience. Its public opposed the war from the start and is increasingly frustrated with the state of the economy just months before midterm elections that could end the president’s ability to meaningfully advance his agenda in the last two years of his term.
The Risks of Getting Russian and Chinese Nuclear Strategy Wrong
In the latest edition of Lawfare‘s Foreign Policy Essay series, Fiona Cunningham and Kristin Ven Bruusgaard discuss the conditions under which the three nuclear great powers (the U.S., Russia, and China) might consider first use and why each country’s approach to it is prone to misinterpretation. Cunningham and Ven Bruusgaard argue that preventing nuclear escalation relies on the U.S. understanding its adversaries’ posture and considering how its own might be misread.
Second, a common expectation that an adversary will use nuclear weapons first to achieve limited conflict objectives could lead a state to take deterrent steps that its adversary misreads as transforming a limited conflict into an existential one. This risk might come to pass if, for example, the United States were to use conventional strikes to deter Russian limited nuclear first use. Large-scale conventional strikes against a range of Russian first-strike capabilities or other key nodes for conventional military power could trigger a Russian fear that a larger Western assault was beginning against Russia proper, leading to Russian nuclear employment.
A History of LGBT Officers & the Central Intelligence Agency
Trace Ballard, Julia Curlee, and Todd Johannessen review the history of LGBT exclusion, eventual inclusion, and return to exclusion in the CIA. They highlight the legal and cultural institutions that made greater acceptance possible and why those same institutions are under threat today.
Observers and historians have been quick to draw parallels between the current moment and the Lavender Scare of the 1950s. The specific mechanisms differ. The authors are unaware of officers being interrogated about sexual orientation, but the campaign to identify, stigmatize, and remove members of a disfavored group from the federal workforce rhymes with that earlier era.
Marriage equality remains the law, and the Supreme Court declined to hear a challenge to Obergefell in November 2025. Gay, lesbian, and bisexual officers at the CIA are not, as of this writing, facing a systematic purge, but for transgender officers, the situation is grave, and the broader chilling effect on all LGBT employees and potential recruits is difficult to overstate
An AI Playground for the Courts
Daniel E. Ho and Olivia H. Martin consider how artificial intelligence (AI) could be deployed by courts themselves, not just litigants. While AI models have proved themselves capable at legal analysis, the authors explain the dangers of overreliance on AI-produced analysis, such as hallucinations or scope decisions that drift from the user’s intentions. Ho and Martin argue that the best way forward is a controlled AI “playground” where courts can explore these possibilities while ensuring privacy protections.
In 18 minutes, the agent located the docket (which had a staggering 88,800 comments), devised a search strategy, downloaded and parsed more than 500,000 words (or approximately 1,200 pages) of comments, extracted supporting quotations, and produced a structured memorandum with citations and verifiable pin-citations. The resulting memo was a strikingly useful starting point—although of course incomplete. On careful review of the agent’s approach and tool calls, we saw that it had retrieved only the top 10 results for each search, apparently conserving cost, but potentially missing many relevant comments. Used in practice for similar tasks, a judge evaluating only a polished memorandum might see extraordinary speed and apparent comprehensiveness, but inspection of the agent’s process also reveals the retrieval choices that bounded its answer. For example, the LLM might have arbitrarily decided on a search strategy that queried for “law professors” but not “Sierra Club,” and missed a key, distinct issue raised only by the Sierra Club that for some reason failed other search terms. The judge then might have an incomplete—without knowing necessarily whether or how it is incomplete—sense of the distinct issues raised that may or may not necessitate agency response under the Administrative Procedure Act.
Colombia’s Transitional Justice Was Built to Survive de la Espriella
Isabel Rowan Scarpino discusses newly elected Colombian President Abelardo de la Espriella’s attacks on the country’s 2016 peace deal and considers what he could actually do to dismantle the institutions it created. Scarpino finds that the deal’s design anchors core provisions in Congress and the Constitutional Court, making them difficult to repeal outright. However, she warns that de la Espriella could still erode the deal’s implementation at the edges, undermining its credibility for other armed groups that may weigh a deal of their own.
On the institutional track, de la Espriella’s legal path is severely constrained by Congress’s central role in legislating peace, and the Constitutional Court’s expansive oversight. Much ink has already been spilled by legal scholars clarifying that no president can unilaterally close the JEP or other mechanisms established by constitutional amendment. De la Espriella would need Congress to alter the constitution, and even then the Constitutional Court has the power of review; under the sustitución de la Constitución doctrine, reforms or amendments that conflict with foundational constitutional pillars cannot stand even if procedurally proper. Repealing statutory laws requires an absolute majority of each chamber, plus prior court review.
The Maritime Origins of Judicial Review
Thomas H. Lee reviews Kevin Arlyck’s book, “The Nation at Sea: The Federal Courts and American Sovereignty, 1789-1825.” Lee praises Arlyck’s illumination of the often overlooked role of maritime considerations in the courts’ early definition of international law. However, Lee also wishes the book had included other key cases and developed key concepts such as sovereignty more fully.
The federal courts are neither heroes nor villains in Arlyck’s even-handed treatment of the critical but underexamined role of the federal courts in the early history of the United States. What we see instead is a lot like what we are seeing today. The Supreme Court and federal district judges tended to align their decisions with the national security interests the president perceived. They paid lip service to lofty ideals such as republican government and the imperative of following the law of nations. But their actual decisions were often pragmatic, keeping the peace when American neutrality was the political branches’ goal and greasing the war machine when the United States was a belligerent. And when confronted with the monstrous immorality of the slave trade, the Supreme Court balked and restored enslaved persons and slave ships to European masters. The decisions in this respect foreshadow the federal courts’ handling of the Fugitive Slave Act cases and Dred Scott v. Sandford (1857).
Trump’s Private Hacker Memo Is the Right Idea
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses the Trump administration’s plan to authorize private companies to conduct cyber operations against criminal groups, a recent cyberattack conducted by Ukraine, the EU’s new cybersecurity standards, and more.
The U.S. government, particularly the intelligence community, also has incentives to make sure that proposed private-sector operations do not target foreign government entities. It wants to make sure that licensed hackers don’t accidentally interfere with its own operations, so it will pay attention to make sure there are no conflicts.
It is true that there is often some overlap between criminals and the state in countries like Russia and China. But we doubt that any government will complain if its activities are impacted because criminals in its country were hacked.
Podcasts
On Monday’s Lawfare Daily, Julia Curlee sits down with me to discuss articles she wrote in The Atlantic and Lawfare about the second Trump administration’s purge of the National Security Council (NSC) and her experience during that time.
On Tuesday’s Lawfare Daily, Kate Klonick is joined by Vinh Nguyen, Elham Tabassi, and Kat Duffy to discuss recent calls for a U.S.-led Frontier AI Standards Body. They consider the potential benefits and drawbacks of a FINRA-like model and what it could mean for public trust, especially for allies who may be reluctant to accept a U.S. body as an international standard-setter.
On Scaling Laws, Matt Abrams joins Kevin Frazier to explore the impact of artificial intelligence (AI) on the collapse of institutional trust, Abrams’s work rebuilding that trust, and the relationship between AI, information integrity, labor disruption, institutional legitimacy, and democratic resilience.
On Wednesday’s Lawfare Daily, Anastasiia Lapatina sits down with Yaroslav Hrytsak to discuss the history of Ukrainian-Polish relations, the controversies surrounding the Volhynian tragedy, and how the politicization of history could impact Ukraine’s bid to join the European Union.
On Thursday’s Lawfare Daily, I speak with Anna Bower about how special grand juries work, what federal law actually permits them to do, and why turning one loose to investigate purported crimes can, on occasion, backfire on the prosecution.
Videos
On Lawfare Live, I sit down with Molly Roberts, Anna Bower, and Eric Columbus to discuss updates in the prosecution of Don Lemon, Disney suing the Federal Communications Commission for its order requiring ABC-owned stations to file early license renewals, the Justice Department appealing the dismissal of Kilmar Abrego Garcia’s criminal case, and more.
Documents
Peter Beck shares the Department of Justice’s Office of Legal Counsel’s new memorandum, which states that the Posse Comitatus Act, which usually prohibits the use of the military for domestic law enforcement purposes, does not prevent military personnel from making arrests near designated “national defense areas,” such as portions of the U.S.-Mexico border.
Sarah Willrich shares the Trump administration’s National Security Science & Technology Strategy, which seeks to support the administration’s 2025 National Security Strategy by prioritizing U.S. leadership in emerging technology development.
Today’s #BeastOfTheDay is the otter, seen here cleaning up:
In honor of today’s Beast, do some housework.
AI Adventures
I (EJ Wittes) recently found a fascinating—and quite disturbing—paper. The experiment tested what sort of factors influence LLMs in giving advice to a user considering having a child and found that the models are disturbingly prone to sexism and eugenics.
