The Week That Was

Benjamin Wittes defended Attorney General Merrick Garland against blame for the election of President-elect Donald Trump, arguing that—despite Garland’s slowness in prosecuting Trump, and the Justice Department’s questionable strategic decisions—neither the outcomes of the proceedings nor the outcome of the presidential election were the result of Garland’s actions.

On Lawfare Daily, Wittes talked to Scott R. Anderson, Alan Z. Rozenshtein, Quinta Jurecic, and Mary B. McCord about Trump's picks for his cabinet and senior-level administration positions, including Matt Gaetz as attorney general, Pete Hegseth as secretary of defense, the possibility of Trump using the recess appointment power, and more. The episode was recorded live, and is also available in unedited video format on Lawfare’s YouTube channel.

Wittes argued that the controversial nominations of Gaetz, Tulsi Gabbard, Hesgeth, and Robert F. Kennedy, Jr. to senior roles within the government represent a tactic on the part of Trump to ensure that these four candidates—who in isolation would be straightforwardly rejected by the Senate—have a genuine chance of being confirmed.

Wittes reflected on Gaetz’s withdrawal from consideration as Trump’s nominee for attorney general. Wittes argued that the withdrawal represents a win for the Justice Department, for the Senate advice and consent process, for the notion that sexual misconduct still matters, and for the idea that Trump—despite rhetoric of resistance to the contrary—is not a dictator unconstrained by the Constitution.

On Chatter, Shane Harris sat down with Ashley Parker and Josh Dawsey to discuss the incoming second Trump administration, including Trump’s victory, his initial choices for top national security positions, a “chaotic” presidential transition, and more.

On Rational Security, Anderson sat down with Rozenshtein, Molly Reynolds, and Chris Mirasola to discuss the week’s big national security news, including Trump’s potential use of recess appointments to fill positions in his forthcoming administration, the imminent ban of TikTok in the United States, Trump’s intention to deploy the military at the southern border by declaring a national emergency, and more.

Anderson explored the president’s power to deploy the military for domestic purposes and legal safeguards against Trump’s potential abuse of this power.

Mirasola discussed the widespread legal authority of the president to deploy the U.S. military to assist with immigration enforcement along the U.S.-Mexico border.

In this week’s installment of Lawfare’s Foreign Policy Essay series, Sam Roggeveen contended that Australia’s faith in AUKUS—its alliance with the United Kingdom and, in particular, the United States—is based on the misconception that the U.S. will reverse the shift towards Chinese hegemony. Roggeveen implored that, rather than relying on a non-committal Trump administration, Australia should seek to strengthen itself and its regional partners first and foremost.

Daniel Skeffington analyzed the domestic constitutional constraints on war powers for the AUKUS nations and how they affect the alliance, suggesting that factoring in these limitations could facilitate increased warfighting capabilities and collective deterrence.

In the latest installment of the Seriously Risky Business cybersecurity newsletter, Tom Uren broke down the news, including the decreased visibility of the People’s Liberation Army’s cyber operations, the increasingly common exploitation of zero-day vulnerabilities, Google and O2’s new artificial intelligence (AI) scam-busters, and more.

Anastasiia Lapatina explored the divisions in Ukraine between those optimistic about Trump’s return to the White House—largely in the hopes of a hawkish Republican strategy—and those pessimistic that Trump—who has praised Vladimir Putin’s invasion—will bring a swift end to Ukraine’s fight against Russia.

On Lawfare Daily, Lapatina sat down with Fabian Hoffman to discuss the strategic and tactical effects of Ukraine’s use of Western long-range weapons inside Russia, what’s behind the timing of the U.S’s decision to allow this, and why it took so long for the U.S. to change its policy.

Also on Lawfare Daily, Olivia Manes talked to Marlene Laruelle about the financial, ideological, and historical connections between the American far-right and Russia. The pair discussed the distinction between confluence and influence, white supremacist notions of a "pan-white" nation embodied by Russia, the role of the Russian Orthodox Church in fostering connections, and more.

Tyler McBrien shared the International Criminal Court’s press releases announcing the arrest warrants for Israeli Prime Minister Benjamin Netanyahu, former Israeli Minister of Defense Yoav Gallant, and Mohammed Diab Ibrahim Al-Masri, also known as Deif, the commander of Hamas’s al-Qassam Brigades.

On Lawfare Daily, Anna Hickey talked to Robert Fatton about the situation in Haiti, including the assassination of Haitian President Jovenel Moïse in July 2021, rising gang violence in the country, the ongoing humanitarian crisis, the possible response of the incoming Trump administration, and more. 

Harry Oppenheimer, Anna Ablove, and Roya Ensafi explored how geoblocking by platforms—used as a de-risking strategy in the face of ambiguous sanctions—has restricted the digital freedom of the Cuban people. The group suggested possible solutions, including reforming federal sanctions regulations, increasing transparency, opening up digital infrastructure, and more.

On Lawfare Daily, Kevin Frazier talked to Chris Johnson about space law, including the policies and geopolitical trends shaping the governance of space, how space policy may change in the Trump administration, ongoing international negotiations around space, and more.

Akash Wasil explored how a model for AI governance—resembling the International Atomic Energy Agency (IAEA)—could function, including how the IAEA’s verification methodology could translate, the limitations of such an approach for AI, the lessons AI governance can draw from organizational case studies, and more.

Susan Landau explored the shift in consensus among the national security and law enforcement apparatus over the proliferation of end-to-end encryption technology (E2EE). Landau argued that E2EE must be embraced as quickly and widely as possible by government agencies and law enforcement.

Sophia Paslaski argued that as new and potentially dangerous technologies emerge from Silicon Valley, organized labor can act as an important safeguard against threats to the public good. Paslaski suggested that unionized tech workers could play a crucial role in securing laws on data privacy, regulating generative AI, and establishing wider accountability in the industry.

In the latest installment of Lawfare’s Security by Design Paper Series, Justin Sherman suggested that security by design policies and guidance should look to decades of experience from the privacy by design space. Sherman offers six recommendations for policymakers to translate security by design into regulatory guidance, technical specifications, and operational processes.

On Lawfare Daily, Frazier sat down with Christie Hicks and Mandy DeRoche to explore how environmental law and national security interact under the Biden administration’s AI agenda. The group considered the tensions between advancing emerging technologies and existing environmental commitments, grid stability requirements, clean energy goals, and more.

Janneke Parrish, Megan Thomas, and Omid Ghaffari-Tabrizi examined the Biden administration’s recent National Security Memorandum (NSM) on AI, including the background to the NSM, its contents and implications, the range of reactions to the memo, and more.

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And that was the week that was.