The Lawfare Podcast: Patreon Edition - The Lawfare Institute

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Rational Security: The “CesTar” Edition Jan 28, 2024

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This week on Rational Security, just Scott was joined for a Bizarro-world episode with guests Lawfare Senior Editor and Brookings Senior Fellow Molly Reynolds (back for a second episode in a row!) and Lawfare Legal Fellow Anna Bower! They talked over some of the week’s big stories, including:

“Two Houses, Divided Against Themselves...” The fate of key national security legislation—including the Ukraine supplemental and border legislation—is increasingly coming down to the increasingly dysfunctional dynamics within and between the two chambers of Congress. What does this tell us about how our most democratic institution is operating?
“Fani, Be Tender With My Love.” In recent weeks, Fulton Co. Prosecutor Fani Willis’s case against former President Trump and his associates has been endangered by rumors that she is engaged in a longstanding affair with subordinate prosecutor Nathan Wade—and that she extended the investigation to secure more salary for him. But is the story more smoke than fire?
“Carpe Seize ‘Em.” The Biden administration has officially come out in qualified support of seizing Russia’s frozen assets to compensate Ukraine, and the Senate Foreign Relations Committee is scheduled to consider authorizing legislation this week. Is this finally a route to accountability? Or do the associated risks outweigh the benefits?

For object lessons, Molly endorsed David Grann’s latest book, “The Wager.” Scott shouted out listener Paul whose birthday party he inadvertently crashed this past weekend, and urged other listeners to come say hi if they see him in the wild! And Anna urged anyone seeking a divorce in the state of Georgia to seek out the fine people at the Cobb County courthouse (who also make a lovely salad).

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Trump's Trials and Tribulations: What Is Going On in Fulton County? Jan 27, 2024

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It's another episode of “Trump's Trials and Tribulations,” recorded on January 25 in front of a live audience on YouTube and Zoom. Lawfare Editor-in-Chief Benjamin Wittes, Lawfare Senior Editor Roger Parloff, and Lawfare Legal Fellow Anna Bower discussed all of the Section 3 litigation occuring across the country and Roger Parloff's recent article about whether the president is an officer of the United States. They talked about why we are still waiting on the D.C. Circuit to rule on Trump's presidential immunity claim and when the D.C. trial may actually start. They also talked about what is going on in Fulton County and Michael Roman's motion to disqualify District Attorney Fani Willis. And of course, they took audience questions from Lawfare Material Supporters on Zoom.

To be able to submit questions to the panelists, you should become a Material Supporter at lawfaremedia.org/support.

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Lawfare Archive: War Powers and the Biden Administration Jan 27, 2024

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From March 12, 2021: President Joe Biden has conducted military strikes in Syria, has articulated legal theories under which the series of strikes were proper and has temporarily reined in the use of drone strikes. To talk about Biden and war powers, Benjamin Wittes sat down with John Bellinger, who served as the legal adviser at the State Department and the legal adviser for the National Security Council in the Bush administration; Lawfare senior editor Scott Anderson, who worked in the State Department's Office of the Legal Adviser, as well as in the Iraqi embassy; and Rebecca Ingber, who also worked in the State Department's Office of the Legal Adviser and is currently a professor at Cardozo Law School. They talked about how the Biden administration justified the strikes in Syria, the reports it has not yet given on its legal and policy framework for counterterrorism, whether this is the year that AUMF reform might finally happen and which authorizations to use military force might finally see reform.

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Government Use of Open-Source Information Jan 26, 2024

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In front of a live audience at the Knight Foundation's INFORMED conference in Miami, Florida, Lawfare Editor-in-Chief Benjamin Wittes spoke with Hon. Kenneth L. Wainstein, Under Secretary for Intelligence and Analysis at the Department of Homeland Security; Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University; and Lawfare Senior Editor Quinta Jurecic about government surveillance of open source social media.

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Chatter: "A City on Mars," with Dr. Kelly and Zach Weinersmith Jan 25, 2024

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Outer space is back in style. For the first time in decades, NASA is sending astronauts back to the moon. Millionaires are exiting the atmosphere on a regular basis. And Elon Musk says humans may land on Mars to set up settlements by 2030. But would mastering space be worth it?

In their new book, “A City on Mars,” co-authors (and spouses) Dr. Kelly and Zach Weinersmith argue that it’s probably not. From biology to engineering to international law, they charmingly survey the many charms and dangers that space inevitably entails, with pictures to boot. For this week’s Chatter episode, Scott R. Anderson spoke with Kelly and Zach about their book, what role they think space exploration and settlement should play in humanity’s future, and why space may not be all it’s cracked up to be anytime soon.

Among the works mentioned in this episode:

The book “Soonish,” also by Kelly and Zach.
The book “Dark Skies: Space Expansionism, Planetary Geopolitics, and the Ends of Humanity” by Daniel Deudney.
The book “The Creation of States in International Law” by James Crawford.
The television series “The Expanse.”
The 1970s film “Libra.”
The television series “For All Mankind.”

Chatter is a production of Lawfare and Goat Rodeo. This episode was produced and edited by Cara Shillenn of Goat Rodeo. Podcast theme by David Priess, featuring music created using Groovepad.

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‘Democracy Awakening’ with Heather Cox Richardson Jan 25, 2024

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Heather Cox Richardson is the author of the book “Democracy Awakening: Notes on the State of America,” which looks at the evolution of American democracy and traces the roots of Donald Trump’s “authoritarian experiment” to the earliest days of the republic. Lawfare’s Associate Editor for Communications Anna Hickey sat down with Richardson to discuss the state of American democracy today, the historical context we should use to understand the current threats to democracy, and what we can learn from previous periods of American history.

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Jim Dempsey on Standards for Software Liability Jan 24, 2024

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Software liability has been dubbed the “third rail of cybersecurity policy.” But the Biden administration’s National Cybersecurity Strategy directly takes it on, seeking to shift liability onto those who should be taking reasonable precautions to secure their software.

What should a software liability regime look like? Jim Dempsey, a Senior Policy Adviser at the Stanford Cyber Policy Center, recently published a paper as part of Lawfare’s Security by Design project entitled “Standards for Software Liability: Focus on the Product for Liability, Focus on the Process for Safe Harbor,” where he offers a proposal for a software liability regime.

Lawfare Senior Editor Stephanie Pell sat down with Jim to discuss his proposal. They talked about the problem his paper is seeking to solve, what existing legal theories of liability can offer a software liability regime and where they fall short, and his three-part definition for software liability that involves a rules-based floor and a process-based safe harbor.

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The Aftermath S2E2 - Lawyers for the Coup Jan 23, 2024

Show notes

In December 2020, The President and his advisors are still fighting to overturn the results of November’s presidential election. Then, in the middle of the month, a lawyer in Wisconsin sends a memo to the president’s legal team. This memo marks the beginning of a scheme that works its way through state legislatures and the halls of Congress, then to Trump himself. It is a scheme that ends with the Vice President of the United States in mortal danger. The main architect and proponent of this scheme is a little-known law professor from California, John Eastman.

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Shoba Pillay and Jennifer Lee on the SEC SolarWinds Enforcement Action Jan 23, 2024

Show notes

The fallout from the SolarWinds intrusion took a new turn with the U.S. Security and Exchange Commission’s (SEC) decision to file a cybersecurity-related enforcement action against the SolarWinds corporation and its Chief Information Security Officer (CISO), Timothy G. Brown, on October 30 of last year. To talk about the details and significance of this enforcement action, Lawfare Senior Editor Stephanie Pell sat down with Shoba Pillay, a partner at Jenner & Block and a former federal prosecutor, and Jennifer Lee, also a partner at Jenner & Block and a former Assistant Director in the SEC’s Division of Enforcement. They discussed the cybersecurity and national security implications of the SolarWinds hack, what the SolarWinds enforcement action suggests about the SEC’s expectations for disclosure obligations of companies, and whether the SEC or another agency is best suited to determine whether and how SolarWinds should be held accountable. They also discussed larger takeaways and messages sent by the SEC’s decision to charge a CISO in this case.

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Waxman and Ramsey on Delegating War Power Jan 22, 2024

Show notes

There is much debate among academics and policy experts over the power the Constitution affords to the president and Congress to initiate military conflicts. But as Michael Ramsey and Matthew Waxman, law professors at the University of San Diego and Columbia, respectively, point out in a recent law review article, this focus misses the mark. In fact, the most salient constitutional war powers question—in our current era dominated by authorizations for the use of military force—is not whether the president has the unilateral authority to start large-scale conflicts. Rather, it is the scope of Congress’s authority to delegate its war-initiation power to the president. This question is particularly timely as the Supreme Court appears growingly skeptical of significant delegations of congressional power to the executive branch.

Matt Gluck, Research Fellow at Lawfare, spoke with Waxman and Ramsey about their article. They discussed the authors' findings about the history of war power delegations from the Founding era to the present, what these findings might mean if Congress takes a more assertive role in the war powers context, and why these constitutional questions matter if courts are likely to be hesitant to rule on war powers delegation questions.

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