Unboxing Day!
Look great and stick a thumb in the eye of the cringe tariffs
Good Evening:
Friday on #DogShirtTV, I was supposed to welcome the estimable
to the show, but then she didn’t show up. It’s a revolution, folks, revolutions are messy. What if we had a revolution and nobody came? Minna will be joining tomorrow.Instead, the estimable
, the estimable , and I discussed a thought experiment we’ve invented called “optimism.” It’s a new thing we’re trying. We imagined what the best possible outcome for Ukraine and Eastern Europe more generally might look like in the Trump era.Also, Ava was there. She liked the cactus.
The Situation
In my “The Situation” column, I took another look at how one particular court is trying to effectuate its order against the Trump administration:
My point here is emphatically not that Judge Xinis’s task is fruitless or that there is no way to hold this administration to the law. Far from it. I remain optimistic that district judges can force compliance with their lawful orders.
My point, rather, is that it’s going to take a lot of work.
They cannot simply assume compliance. Everything they order will require follow-up—which sometimes will take a lot of time. Every statement the government makes has to be verifiable—and verified. Every factual representation will require an affiant who is under oath or maybe even a live witness.
Some individual person has to be accountable for every single statement. Which is to say that judges need to treat this government as a presumptively lawless entity, an entity that is presumed to be lying, not as an entity to which they offer a presumption of good faith and regularity. Judge Xinis, to her credit, appears to understand this, as does Judge Boasberg. They are doing the work.
In an excellent piece on Lawfare, Alan Rozenshtein wrote that, “A world in which the government’s actions undermine its claims to a presumption of regularity would have profound consequences.”
Indeed it does, but a world in which the attorney general can sneer at a distinguished federal judge, in which she can tell federal employees that they should find a way to implement her boss’s blacklist whatever he may say, and in which other judges then grant her a presumption of regularity when the Justice Department says it doesn’t feel like following her order to produce information about the steps it has taken to retrieve someone illegally rendered to El Salvador?
That world has even more profound consequences.
It is a world of formalist delusions.
Friday On Lawfare
Compiled by the estimable Caroline Cornett
MAGA's NSA Purge Will Get Messy
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses who is t head of the National Security Agency (NSA) and the United States Cyber Command, the effect that the European Union’s growing skepticism that the U.S. will uphold data flow agreements will have on U.S. tech companies, and a Chinese information operation targeting Canada’s upcoming federal election.
Parachuting in a political appointee from private industry to replace Haugh, who has decades of military and intelligence experience, will result in a leadership gap.
An abrupt split between NSA and Cyber Command will also create problems. Having a single shared leader meant a single decision-maker could assess and manage competing requirements for intelligence (NSA) and disruption (Cyber Command) operations. Haugh was in favor of the dual-hat arrangement, and our piece from December 2024 explains the trade-offs between these different types of operations.
Taming the Dogs of War – U.S. Efforts to Control Proxy Forces
Maj. Kevin Coble reviews Erica Gaston’s “Illusions of Control: Dilemmas in Managing U.S. Proxy Forces in Afghanistan, Iraq, and Syria,” highlighting her analysis of control mechanisms using principal-agent theory and the bureaucratic politics approach, as well as the implications her research has for national security decision-making.
Gaston’s premise that the use of control mechanisms as a means of bargaining or compromise necessarily raises other larger policy issues. First, she notes that if the United States is using control mechanisms as risk-mitigation tools, it is unclear how effective those mechanisms are at decreasing the identified risks. For example, the United States may require weekly inventories of the lethal arms provided to a proxy force to prevent the arms from being sold to a terrorist organization. If there are no U.S. troops on the ground to accurately inventory the weapons, however, that control mechanism may not effectively reduce the risk. Even if U.S. troops can inventory the weapons, the inventory does not prevent the weapons from falling into terrorists’ hands; it only identifies missing weapons. The inventory must, therefore, be accompanied by enforceable sanction (for example, suspended weapons transfers), which, for operational reasons, can be very difficult to carry out.
Podcasts
Tom Karako joins Daniel Byman to discuss the Trump administration's missile defense proposal known as “Golden Dome,” its feasibility and cost, how China and Russia might respond, and what realistic success would look like.
Videos
On April 11 at 4 p.m. ET, I spoke to Anna Bower, Quinta Jurecic, Roger Parloff, James Pearce, and Bob Bauer about the status of the civil litigation against President Donald Trump’s executive actions, including the Supreme Court’s rulings in the Alien Enemies Act case and in the firing of probationary employees case:
Today’s #BeastOfTheDay is Neil banging out the tunes:
It is the 19th anniversary of the day that Neil first banged out the tunes, so congratulations to Neil! I’m especially grateful to Neil for creating one of my favorite Google Trends charts:
That once-a-year spike really makes me happy. In honor of today’s Beast, make some music. If a rat can do it, you can too.
Today’s #BeastOfTheDay is not this dishwasher, which is disqualified from Beastly honors on account of being a machine and not an animal. However, it is nevertheless clearly a Beast and deserving of recognition:
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