Good Morning:
Monday on #DogShirtTV, the estimable Mike Feinberg and the estimable
joined me to welcome the extremely estimable George Conway. We talked sociopathy, compromise, and the Trump regime. It’s bad out there, guys!Tuesday there was no Dog Shirt TV, because we took a break in honor of the world’s birthday. Happy Birthday, world!
Wednesday on #DogShirtTV, a whole phalanx of estimable cohosts and Greek Chorus members showed up to discuss things they think are overrated. Weddings, the Supreme Court, olives, JFK, and more were all covered.
The Situation
In Monday’s “The Situation” column, I unpack President Trump’s rush to push out and replace acting U.S. Attorney Erik Siebert with a more compliant prosecutor, following Siebert’s determination that no charges were warranted against former FBI Director James Comey. I identify a looming statute-of-limitations expiration on possible charges against Comey as a likely reason for the urgency and comment on the president’s habit of proclaiming his political enemies’ guilt on social media.
This brings us to the second feature of Trump’s posts: He has determined the guilt of the three people involved and wants the cases brought irrespective of the merits as professional prosecutors consider them after, you know, talking to the relevant witnesses and actually reading the documents and the like.
Other than to note the infinite corruption of such a posture, I actually have little to say about it. The president has determined that three of his political foes are guilty. A prosecutor working for him has determined that there is no case to make against them. He has removed that prosecutor and named one of his personal lawyers to run the office with the case—a lawyer he hopes will be more compliant—in response. The thing really speaks for itself.
In Wednesday’s “The Situation” column,
and I unpack the possible paths forward for Lindsey Halligan, the former White House aide who—after former U.S. Attorney (AUSA) Erik Siebert refused to move forward with cases against New York Attorney General Letitia James and FBI Director James Comey—was sworn in as AUSA for the Eastern District of Virginia this week. We explore the viability of different cases she could pursue against Comey and James, the fast-ticking clock that accompanies certain charges, and the backwardness of pursuing a case this way at all.So let’s try to play Halligan’s hand out for a moment—a “Choose Your Own Adventure: Lindsey Halligan Edition,” if you will. You, the reader, play the role of Halligan.
At least as regards Comey, you don’t have a lot of time. The key statute of limitation runs out in six days; after that, any case gets exponentially harder. So you have a brief window in which to decide whether or not you really want to pursue this.
If you don’t go forward, off with your head. Remember how you got this job, after all.
But you know that both cases are weak. How do you know this? Again, remember how you got this job. Your Trumpist U.S. attorney predecessor was willing to lose his job, rather than bring these.
Recently On Lawfare
Compiled by the estimable Isabel Arroyo
Hezbollah’s Collapse Is Lebanon’s Opportunity
Siddhant Kishore examines the recent history of Hezbollah in Lebanon, arguing that the paramilitary group’s current weakness following Israeli military operations provides a critical opportunity to defeat it permanently. He recommends next steps available to both the Lebanese Armed Forces and the Israeli Defense Forces, suggesting that coordination between the two will be key.
Hezbollah’s military collapse, coupled with Iran’s waning influence, now offers Lebanon a rare chance to end four decades of militancy and reassert full control over the country. In August, the Lebanese government approved a U.S. proposal to disarm Hezbollah and facilitate Israel’s withdrawal from southern Lebanon. Lebanon, the United States, and Israel must urgently resolve the outstanding issues regarding the proposal’s timeline to build consensus on its implementation, ensuring Hezbollah’s disarmament and paving the way for lasting peace along the Israel-Lebanon border.
Digital Threat Modeling Under Authoritarianism
Bruce Schneier analyzes the changing threat assessments that users of digital technology must consider, as tech corporations provide massive amounts of personal data to a government that may be more willing to use it for opportunistic prosecutions, political pressure, and other authoritarian ends.
The mechanisms of corporate surveillance haven’t gone away. Compute technology is constantly spying on its users—and that data is being used to influence us. Companies like Google and Meta are vast surveillance machines, and they use that data to fuel advertising. A smartphone is a portable surveillance device, constantly recording things like location and communication. Cars, and many other Internet of Things devices, do the same. Credit card companies, health insurers, internet retailers, and social media sites all have detailed data about you—and there is a vast industry that buys and sells this intimate data.
This isn’t news. What’s different in a techno-authoritarian regime is that this data is also shared with the government, either as a paid service or as demanded by local law. Amazon shares Ring doorbell data with the police. Flock, a company that collects license plate data from cars around the country, shares data with the police as well. And just as Chinese corporations share user data with the government and companies like Verizon shared calling records with the National Security Agency (NSA) after the Sept. 11 terrorist attacks, an authoritarian government will use this data as well.
Security by Design in Perspective
In the latest installment of Lawfare’s Security by Design paper series, Omid Ghaffari-Tabrizi, Justin Sherman, and Paul Rosenzweig draw lessons from two years of research into software security by design (SbD). They examine how SbD might be better standardized, compare it to other regulatory frameworks, and identify key questions for future research.
In August 2023, the Lawfare Institute launched a multi-year project to evaluate several elements related to “security by design” for software and how security by design as a concept could be better defined, explained, and effectuated in law, policy, and technology to enhance societal cybersecurity. The U.S. government had, at the time, recently released its National Cybersecurity Strategy that signaled a desire to shift industry incentives toward better security from the outset of the design process. Officials at the Cybersecurity and Infrastructure Security Agency (CISA) were similarly working on efforts to socialize the concept of security by design among industry players. And major software companies—in the wake of hacks such as the Microsoft Exchange compromise (by Chinese state actors) and the SolarWinds breach (by Russian state actors)—were likewise weighing their paths forward to continue systemically increasing the security of their products and services.
The Department of Homeland Security Is Unlawfully Collecting DNA
Stevie Glaberson argues that the Department of Homeland Security’s (DHS) fast-growing DNA collection program—which does not consistently require agents to get a warrant or file charges—violates the Fourth Amendment. Glaberson further holds that asking for consent during DNA collections is insufficient to make the program constitutional, because the coercive power of DHS over detainees renders free consent impossible.
The fact that the Department of Homeland Security regularly exceeds the bounds of its statutory authority in taking DNA from U.S. citizens is possible because of the utter lack of meaningful checks on the department. Since its post-9/11 creation, Homeland Security has always operated without accountability. This absence of checks leads to the next way in which the department’s DNA collection program violates U.S. law: The program is also unconstitutional.
The Fourth Amendment protects against unreasonable searches and seizures. Warrantless compelled DNA collection is unquestionably a Fourth Amendment search. So, could these searches be deemed reasonable?
The most relevant Supreme Court precedent on the question is Maryland v. King, in which the Court upheld Maryland’s law allowing collection of criminal arrestees’ DNA. Two facets of the Court’s rationale are especially important: (a) the requirement that probable cause justify a criminal arrest, and (b) Maryland’s limited purpose—the state claimed—of “identifying” those in its custody as part of “routine booking procedures.” Neither applies to the Department of Homeland Security’s DNA collection.
A Framework to Govern AI Innovation
Kevin Frazier proposes the UNITE-AI Act, a complete draft bill that would establish a framework for federal AI governance. Frazier analyzes risks to AI development posed by state-by-state regulatory experimentation, suggesting that although national security, interstate commerce, and healthy federalism all require that certain kinds of state AI laws be federally preempted, states must maintain some regulatory discretion.
A coherent framework for AI governance, which I propose below, must begin, first, with a clear division of labor between the states and the federal government. At its core, the federal government should retain exclusive authority over aspects of AI that implicate national security, interstate commerce, and the baseline integrity of model development and deployment. These domains—where AI models cannot be segmented by geography and where spillover is inevitable—are quintessentially federal in nature. By contrast, the states should exercise authority over the use of AI within their borders, especially in contexts like education, policing, and health care, where local preferences and community values have long shaped policy. This allocation respects the practical realities of AI development while aligning with the constitutional logic of federalism.
To Win the AI Race, Bolster Export Control Enforcement With Intelligence
Christian Chung calls for closer institutional cooperation between the intelligence community and the Bureau of Industry and Security (BIS), an understaffed Commerce Department agency whose mandate includes export controls on artificial intelligence (AI)-critical hardware. Chung argues that fortifying BIS with intelligence expertise would make key export control enforcement more precise and more proactive.
[W]hat’s missing is less about drafting new rules and more about consistently executing the ones already on the books. Even the strongest controls fail if enforcement remains reactive. Indeed, the Trump administration’s action plan calls for a partnership between the BIS and the intelligence community for this purpose, but it lacks details on implementation. Ad hoc cooperation already occurs. What’s missing is institutionalized integration at the line level, which is blocked less by technical capacity than by policy trade-offs inside the U.S. government. Absent clear guidance, well-intentioned leadership in the intelligence community and BIS will almost certainly remain focused on answering today’s mail without planning for a more effective strategy.
Podcasts
On Monday’s Lawfare Daily, Anna Bower, Roger Parloff, Eric Columbus, and I sit down to discuss FBI Director Kash Patel’s testimony in front of Congress, a preliminary injunction blocking the Trump administration from deporting certain Guatemalan children, and Fed Governor Lisa Cook’s challenge to President Trump’s efforts to remove her.
On Tuesday’s Lawfare Daily, Anastasiia Lapatina sits down with Minna Ålander and Mykhailo Soldatenko to discuss Russia’s recent air incursions into Poland and Estonia, the history of Russian warfare against Europe, the proportionality of NATO’s response, and the U.S.’s relatively muted reaction.
On Scaling Laws, Alan Rozenshtein, Renee DiResta, and Jess Miers discuss the mental health and safety risks generative AI systems pose to children, the legal implications of those risks, and the role of media literacy and parental guidance.
On Lawfare No Bull, Arroyo shares the audio from FBI Director Kash Patel’s testimony at the House Judiciary Committee’s oversight hearing last Wednesday. Patel responded to questions about politicized personnel decisions at the agency, gun violence, the Jeffrey Epstein case, the investigation into Charlie Kirk’s murder, and more.
On Wednesday’s Lawfare Daily, Loren Voss sits down with Dan Byman, Ryan Berg, and Scott R. Anderson to discuss lethal U.S. strikes against drug smuggling boats, the strikes’ legality under international law, and Mexico’s ongoing counterdrug efforts.
Announcements
Lawfare is pleased to announce Lawfare Live: The Now and Lawfare Live: The Day After, two new Substack livestreams for quick discussions of breaking national security and legal news. The first livestream will follow the publication of President Trump’s expected executive order on the forced sale of TikTok. I will sit down with Senior Editors Kate Klonick and Alan Rozenshtein to discuss the order. Subscribe to
to be alerted when the livestream takes place.Today’s #BeastOfTheDay is the tiger, seen here engaged in experimental engineering procedures with a cardboard box:
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