← The Lawfare Podcast
Loading summary
Transcript88 lines
- [00:01]
Scott R. Anderson
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com lawfair also check out Lawfare's other podcast offerings, Rational Security Chatter, Lawfare, no Bull, and the Aftermath.
- [00:32]
Daryna
Hi, I'm Darina, co founder of OpenPhone. My dad is a business owner and growing up, I'll never forget his old ringtone. He made it as loud as it could go because he could not afford to miss a single customer call. That stuck with me. When we started OpenPhone. Our mission was to help businesses not just stay in touch, but make every customer feel valued to no matter when they might call. OpenPhone gives your team business phone numbers to call and text customers, all through an app on your phone or computer. Your calls, messages and contacts live in one workspace so your team can stay fully aligned and reply faster. And with our AI agent answering 24. 7, you'll really never miss a customer. Over 60,000 businesses use OpenPhone. Try it now and get 20% off your first six months@openphone.com tech and we can port your existing numbers over for free. OpenPhone. No missed calls, no missed customers.
- [01:32]
Ben Wittes
AI is transforming customer service. It's real and it works. And with fin, we've built the number one AI agent for customer service. We're seeing lots of cases where it's solving up to 90% of real queries for real businesses. This includes the real world, complex stuff like issuing a refund or canceling an order. And we also see it when FIN goes up against competitors. It's top of all the performance benchmarks, top of the G2 leaderboard. And if you're not happy, we'll refund you up to a million dollars, which I think says it all. Check it out for yourself at FIN AI. So I got all excited my first day back in the office after vacation because, Ben, in your little video screen, the first time I've seen you today, even though we were sitting exactly 10ft away from each other, you had a nice polite business collar on. I was like, oh, maybe this is business casual August here at lawfare with my. I'm the one person, I think, who regularly wears dress shirts and I was getting some company and then you zoomed out and a set of, of strange canine eyes arose from, from your sternum in one of the otter dog shirt. Like it's a real covert dog shirt move, which I appreciate. Can you describe this, this shirt and exactly how you procured it to our listeners.
- [02:42]
Scott R. Anderson
So one of the things about the algorithm is that the more interested, the more if you show interest in anything, if you. It bombards you with that thing. And so now the algorithm is obsessed with selling me dog shirts, which is in fact something I want to buy. And dog shirts from all over the world make their way onto my feed. I used to only buy from, as Kate knows, from my friends, Mr. And Mrs. Clothing Monster. Now I've diversified. So these are, it's a line. They're Chinese, I think they're a line of dog shirts that are sort of, you know, know, painted in various abstractions. And this one is like the snout of a dog peeking out from a fold in the shirt. I think the, the search for ever more serious dog shirts that you can wear with jackets and maybe even ties, you know, dog ties goes on and on.
- [03:43]
Dan Byman
I'm hoping that there'll be a huge surge in the dog shirt manufacturing in the United States. I'm kind of upset that you had to go to China for a dog shirt. And it says something about the state of our country, frankly.
- [03:55]
Scott R. Anderson
It does. And it says, you know, also, you know that the cost of dog shirts as a result of the tariffs is, is, you know, price sensitivity is substantial. And so, you know, I, it's just another reason to object to the tariff policies.
- [04:13]
Ben Wittes
Honestly, this is, this does qualify as a national emergency in my personal and professional life though. So I think I might get behind this one for the IPA based tariffs more. More than certain other ones I've seen recently.
- [04:22]
Kate Klanick
I really see, like, Ben W. Is beginning a, like his own dog shirt manufacturing side business. Like, you know, the man builds his own tables. He kind of constructs cannons out of 3D printers, you know, didn't work out that well. Yeah, it did not work out that way. We remember well, but we know that the dog shirts will definitely work out. It's like. But yeah, I think that you should just, you know, start your own, you know, you can start growing flax now to like make the linen and just in like a mat matter of, you know, 18 months, you can be. You too can be weaving your own dog shirts.
- [05:02]
Scott R. Anderson
Don't tempt me with a good time, Kate.
- [05:11]
Ben Wittes
Hello everyone, and welcome back to Rational Security. Fresh from vacation, renewed with a new vigor for delving into the week's biggest national security news stories. Because this is, of course, the podcast. We invite you to join members of the Lawfare team when we do exactly that. And I'm thrilled to have with us truly an all star lineup for this week's Rational Security. As we talk about so many national security stories, we had more than we could actually fit in one episode. We've already got next week's episode all planned out, including some events here at home in Washington, D.C. under occupation. We're not going to get to that this week. There's too much other stuff to talk about. We'll be circling back to that next week, I promise you. But for this week's episode, thrilled to have with us first and foremost, of course, Rational Security, co host emeritus lawfare Editor in chief Benjamin Wittes. Benjamin, thank you for joining us once again here on National Security.
- [05:58]
Scott R. Anderson
Great to be back.
- [06:00]
Ben Wittes
And joining us as well is Lawfare foreign policy editor, CSIS Scholar, Georgetown professor, general man about town, Dan Byman. Dan, thank you for coming back on the podcast.
- [06:11]
Dan Byman
Always happy to be here.
- [06:12]
Ben Wittes
And joining us not for the first time, but for the first time in a while we have our most newly minted lawfare senior editor professor, law professor expert, extraordinary on things law tech and society, Kate Klanick. Kate, thank you for joining us here on the podcast. Wonderful to have you back on. Yeah, I'm thrilled to be here in this new era. I think it's the first time you've had you on this new era of rational security. So excited to have you on. Well, we have a lot to talk about this week. A lot has been happening overseas, a lot has been happening at home. So let us get into it. Our first topic for this week, occupational hazards. The Israeli government, led by Prime Minister Benjamin Netanyahu, has stated its intent to occupy Gaza City, the last segment of Gaza not under Israeli military control, and to displace Gazan civilians to designated safe areas. In an apparent response to both the domestic and international outrage this plan has triggered, Netanyahu later disavowed any intent to actually annex Gaza, even though he acknowledged calls to do so from within his coalition, and finally laid out a rough Israeli end goal for Gaza, namely, a non Israeli governing entity led by neither Hamas nor the Palestinian Authority, operating under complete Israeli security control. But will this be enough to assuage these concerns? And what does this tell us about the trajectory of the Gaza conflict? Topic 2 the Rake. The Trump administration has struck a deal with chip manufacturers Nvidia and AMD, allowing them to export certain high end, but not necessarily frontier model chips to Chinese companies engaging in AI research, among other relevant activities, so long as they share 15% of the profits with the government. It's a move that has both Democrats and Republicans worried about major power competition With China crying foul and lawyers raising serious doubts about its legal viability, what appears to be driving this recent about face and what does it say about the trajectory of US Policy on AI and China? And for our last topic, the war on drugs. But like actually, according to the New York Times, President Trump has reportedly signed a secret order authorizing the use of military force against drug cartels his administration has designated as terrorist organizations. Exactly what sort of military action may result is not yet clear. But it already has legal and policy experts raising concerns on a number of different fronts. How big a move is this and what actions might it yield? So for our first topic, let us dig into what has been one of the biggest national, sorry, international news stories of the last few weeks. And that is the next phase in the conflict in Gaza. Over the last few weeks, we have seen the culmination of something that the international community that U.S. policymakers under the Biden administration, a little bit under the Trump administration too, have been warning about. But that has been something the Israeli government has been thus far denying as a possibility, which is starvation really kicking in in Gaza, a huge humanitarian crisis potentially tipping off there because of the trajectory we're seeing about limited humanitarian access to goods in Gaza. We've seen the dispute around that put an immense amount of pressure on Bibi Netanyahu, internationally and domestically within Israel. Really hitting on a note where you're seeing more opposition, more open objection to some of his managing of the Gaza conflict than we've seen, I think, at the scale in a long time. But the Netanyahu government has not really seemed inclined to back down. While there have been steps to let in some more humanitarian support and access some food relief, they have paired those actions with this broader plan to now step in and occupy Gaza City, the biggest population center of Gaza historically, at least before the onset of the conflict. Although a lot of people have been displaced from Gaza City, many of them returned and now may yet be displaced again. But the biggest population center, certainly the biggest kind of center of population and urban density close to Israel or close to the Gaza Strip's northern border with Israel and the last real pocket that Israeli government and the Israeli military was not yet kind of exercising a strong degree of military control over in this latest campaign. Ben, let me start with you on this. A trade off that Bibi seems to have made here, a concession of sorts over the weekend where we saw his war cabinet approve these plans to occupy Gaza City on Friday. And then over the weekend he came forward with these kind of statements clarifying exactly what the Israelis are intending to do is he's done something that you have been critical of with the Israeli government from the outset, which is that he finally said what the end state is, at least for the moment. Although I will say there are some caveats in there where he said, essentially, look, we're not actually trying to permanently annex or reoccupy Gaza. We want to hand it off to a government, but it can't be the Palestinian Authority, it can't be Hamas, but to some other entity, some other government. We don't know exactly who that's going to be. And Israelis are going to control the security situation generally, it's not really clear to me exactly what that means, the level of security control, but generally, Israelis are going to remain control of it to an extent that they can guarantee their security interests. How much of an itch does that scratch in terms of justifying helping assuage concerns in regards to this latest phase of the Israeli military campaign? And how much of this is too little, too late, too imprecise to really address some of the concerns and criticisms you've had about the lack of a stated end goal from the outset?
- [11:19]
Scott R. Anderson
Well, I am. I tried always to be extremely measured in my assessment of Israeli policy because so many other people choose not to be in one direction or another. But I'm afraid I can't do that in this case. The policy is indefensible, wall to wall, and the walls keep moving. And so, you know, the Israeli government made a decision a few months ago to cut off food to the Gaza Strip in an effort to put pressure on Hamas. And it has caused, whether you want to say mass starvation or episodic starvation, massive food insecurity for a large number of people. They do not know how to unroll this because it takes a real infrastructure that they've destroyed in order to feed 2 million people. And they have said at various times that they have different ambitions vis a vis the end stage. Sometimes they say that they are trying to urge as many people to leave as possible. Sometimes they say that they are reoccupying it themselves. Sometimes they say that they are reoccupying it for purposes of handing it off, as you described, to some mythical force composed of bunnies and unicorns, because we all know that the world of Palestinian forces is full of non Hamas, non PA capable forces for governance. And by the way, when the Israelis say this is not a debatable or rhetorical point, it is simply true, when they say they have security control, they mean that they are the ones who are policing things as distinct from when they say things like ultimate security control, which may mean, you know, for example, that the PA has day to day security control, but they reserve the right to come in. So, so what they're talking about is, you know, some combination, and I just don't know how to put this bluntly other than very bluntly, some combination of forced migration, intentional starvation, reoccupation, and maybe settlement or maybe not, depending on who you ask or at what point and how they're feeling that day and what the international pressures are. And you know, I am willing, as you know, Scott, to ride with Israel a fairly long way in the department of there's shit they need to do because they live in a really tough neighborhood that's really uncomfortable for all of us. And I, I actually accept that as a, in, you know, in a way that oftentimes you do not in terms of what they're, you know, what I'm willing to tolerate from them. The last six months have been one terrible decision after another, and they have been characterized by a grotesque indifference to or hostility to Palestinian life, combined with a complete incompetence of vis such that they don't even know what they're trying to accomplish. And I think this is just the latest stage of that. And so I am actually unable, I'd be curious how much of what I just said, Dan, is going to push back against, because our sensibilities are usually pretty similar in this regard. But I can't think of a word to say in defense of what Netanyahu is doing right now.
- [15:24]
Ben Wittes
Let me come to you on that, Dan, because I want to ask you that exact question. But let me ask you to do something a little more challenging, as I think you have the best grasp of any of us about the tactical considerations on the ground that the Israeli government's likely thinking about. Why may this step make sense from a tactical perspective, at least from an Israeli security perspective? Why would they want to do this at this particular moment? To reoccupy Gaza City? Where does it fit in the broader strategy? And then I am kind of curious about what your take on Ben's take on the broader criticism concerns, which obviously are hard to separate from the overall conflict. But let's hear the most silver lining approach, the best argument for why they're doing what they're doing, and then we can step into some of the other potential criticisms.
- [16:08]
Kate Klanick
Sure.
- [16:08]
Dan Byman
And I'll begin with an argument I'm not even sure the Israelis themselves would embrace. But when you are Doing day to day counterterrorism and counterinsurgency operations. Having a strong presence on the ground is a game changer. You can gather intelligence on a house by house basis. You can make sure that the population is under control and thus you don't have militants hiding among them. You don't have recruitment. When groups like Hamas are trying to move fighters from place A to place B, you can identify them, you can interdict them. And what Israel's problem has been, really since shortly after it began operations in October, is that it goes into a part of Gaza, it kills a lot of people, both Hamas fighters and innocent civilians, drives others out, and then Israeli forces depart and then Hamas pops back up. And it's because there's no force on the ground that is non Israeli that is strong enough to displace Hamas. So as a result, Israel is constantly playing whack a mole. And this is a very old counterinsurgency problem where the US Used the approach of clear hold and build, where you remove the bad guys, you hold on to territory to make sure they don't come back. And then the third stage, you build something in its place so eventually US forces can depart. That was the motto at least. But it took the United States a while to get there. There are other countries that never got there. And Israel from the start has resisted both the hold and the build part. And now it's moving a bit more towards hold. But to go to Ben's point, they have not had, even two years into this, had a serious conversation about what comes next in Gaza. Right? It's been a fantastical one, where they want, whether it's an Arab security force, when the Arab states say we're not going to do this, whether it's Palestinians who are, as Ben said, non existent in that they're both competent and unaffiliated with existing groups. I want to stress though, they were pushed on this since October 2023. I was in Israel shortly after the attacks and there were a parade of US officials going in and out. And these are people who had been painfully scarred by US experiences in Iraq and Afghanistan. And they were all saying, look, you know that you're going to remove, in this case, Hamas, remove the bad guys from power, but it's meaningless unless you put something in its place. And you need to start thinking about that now. And I think largely for political reasons, the Netanyahu government has avoided that conversation because it inevitably means compromise. It inevitably means recognizing that you either have to work with one Palestinian group or another, and they're not willing to do that. And as a result, they only propose negative ideas. So they'll say, well, here's what we don't want in Gaza. But in the end, you have this famine, you have this tremendous suffering, and the world, including now in the United States, people are pointing fingers at Israel, and they don't have an answer to this beyond extending their military effort. And I think that's backfiring on Israel, not only internationally, but I think this is an occupation that's unpopular within Israel even before it's begun.
- [20:01]
Ben Wittes
So that question strikes me as critical to this because we have seen popular opinion of Netanyahu in particular, fluctuate substantially, really over the last 10 years, off and on, particularly over the course of this conflict. Obviously, he is somebody who early on was seen as bearing a substantial amount of responsibility for the massacre that led to the Israeli Military Opera's October 6th massacre. And to some extent, many people suspect, particularly people critical of Netanyahu, that part of the reason he has been so active in engaging and pursuing expanding the conflict is because he's relying upon the continuation of military operations to justify his continued retention of the prime minister position, to preserve his coalition and to hopefully build up a legacy that will give him a stronger basis to run for reelection and preserve his coalition in the next election. And he seemed to be making progress on that latter front, frankly, a few months ago, because Israel has had remarkable success in Lebanon in taking out Hezbollah. That triggered a really fortuitous change of events in Syria, where you have a new regime, while Netanyahu is very hostile to that regime in a way that even the United States is not. Most countries are not. Nonetheless, is an improved security situation in terms of not providing the sort of. Of environment that Iran could operate in that was in Syria for many years prior. And you have that combined with what's happening in west bank and Gaza, which is, while objectionable to the international community, not entirely unpopular in Israel, with the exception of the approach to hostages and continuation of the conflict. So you had space where you could really see Netanyahu filming, like building out this narrative. And now we've seen this turn in Gaza, first in the famine where it's a big problem, and then to this question of. Of reoccupying expanding the conflict. So what is the domestic political calculus on this? I'll start with you, Ben, on this, just because I know you follow Israeli domestic politics relatively closely, although, Dan, I think you do to a good extent as well. How does this make sense politically for Netanyahu? Is that the driver or is that not the case? And I'll note it's particularly interesting because he did finally rebuke his internal coalition over the weekend. Like he did say, yeah, we're not going to go ahead and annex Gaz, or at least that's not my intent, even though he said other people in my coalition do want me to do that. That's actually pretty notable in a political step. He hasn't gone quite so far in rebuking, at least from the readouts I've read. I will say confess, I have been trying to find the actual text of the statement. I haven't found it yet, but the press accounts make it sound stronger. So how is he triangulating this? This is a political shift for him.
- [22:32]
Scott R. Anderson
It's not a triangulation. Netanyahu knows his government is going to fall after the high holidays. And the government may fall or he may just decide to call new elections, but there have to be elections in 2026 anyway. The government is very fragile. The ultra orthodox are already bolting the government over drafting of ultra orthodox men. Nobody can bring down the government in this period in which the Knesset is in summer recess, which kind of ends at the time after the high holidays, which loosely correspond to the academic year in the United States. So sometime in September, and then the Knesset comes back and there will be elections scheduled. And so this is a brief period of time in which the ultra right cannot really harm Bibi because he doesn't need them to keep his government together, because the government's not standing, staying together anyway. It's heading toward elections. And they can't bring him down quickly because he has another few weeks until after Sukkot, in which he's basically not quite a dictator. But he's, he's, he's not vulnerable. And so in that moment, he chooses that moment to placate international pressures, which is, you know, very he's always the triangulation is not among Israeli domestic politics. It's a triangulation between domestic politics and foreign pressures. The world is upset about famine in Gaza, which, you know, Bibi can't understand because there's no famine in Gaza, he tells us. But he understands that people are upset and he understands that Trump does not like the pictures. And he wants to do these operations rightly or wrongly, in my judgment, kind of crazily, but okay. And so he what does he do? He makes a gesture rhetorically in the direction of placating international fears about a permanent occupation. By the way, he sticks in the But Israel will have security control, which means the area will be under Israeli occupation. But Eddie says kind of no annexation, nothing he can't change six weeks from now. And the likely consequence of it is domestically is nothing, because there isn't very much that Smotrich and Benkvir can do except kick his ass in the next election, which they may very well do, because even the right is angry at Bibi. And so it could be that you have, you know, a bit of a flight from. By Likud voters to, you know, the far right or the, you know, aspects of the ultra orthodox right, as well as flight from two more moderate parties like the former Defense minister's party. And so I would not interpret this as a significant change in Israeli posture toward Gaza. I would interpret this as it's the summer in Israel and Bibi knows he's heading toward elections and is ever so slightly, slightly repositioning himself in that regard. I don't know. I'm curious if Dan reads it differently, but that's my take.
- [26:21]
Dan Byman
So I think you nailed it. But I want to put a more depressing gloss on this, which is, let's pretend for some reason there are early elections and Netanyahu loses, and he loses decisively. Right? So you never are going to win money by betting against Netanyahu. Has kind of been my historical view. But let's say that scenario happens, which I would be very happy with. You don't have an Israeli public that's eager to treat Gaza well, that's eager to have a new Palestinian government in Gaza that it can gradually work with. One thing where Netanyahu's views are very popular is when he says, we can't let terror win and there can't be a reward for October 7th. And what he believes, or at least argues, and what many Israelis believe, is that that means Palestinians of all stripes should not be allowed to get any win from October 7th. So when France or the United Kingdom are recognizing a Palestinian state, even though they're strongly opposing Hamas, Netanyahu is using it to try to discredit proponents of a ceasefire, to try to say, look, what you guys want is going to reward the very people who did October 7, who cheered it on, who supported it. And so I think what would happen if there were a new government is Netanyahu or someone like him would immediately have a very potent criticism to say, look, what are you guys going to do in Gaza? You said you wanted a ceasefire. Okay, does that. Who comes in to take over? Does that mean Hamas is back? In which case they will hammer on that for years. Does that mean some other Palestinian entity, in which case its inevitable problems and weaknesses will be a constant source? So I'm worried that this is a long term political issue and anyone who proposes, in my view, sensible and necessary compromise on Gaza is going to be very politically vulnerable.
- [28:28]
Ben Wittes
So one last question before we go on to our second topic, and that is the US Policy angle about this. I think it's fair to say which policy, the broader tenor approach that the Trump administration has been taking, because even.
- [28:40]
Scott R. Anderson
That I can't identify what it is. Is it, this looks really bad, you can't fake these pictures, or is it get it done quickly, I don't care what you do, but get it done quickly. Or is it unconditional support for Israel?
- [28:54]
Ben Wittes
I think that's actually getting exactly the tension that I have. I think the only way I can kind of try and summarize a cohesively kind of message from the Trump administration to Israel on the Gaza conflict has been something like we're not co. You can do what you want or what you need to do, but we're not co signing it, but we're not stopping it. And they seem to have been willing to let the Israelis do a lot. They're not necessarily buying it. They've been openly critical of parts of it, other parts they've been accepting of it, other parts they've leaned into when they've underscored how devastated Hamas will be by Israeli military action if they don't come to the table in negotiations. But it's been kind of a hand off, but we're not going to stop you sort of approach. Do we think this is sustainable in this particular moment? Because we're seeing more and more points of tension between the Trump administration and the Netanyahu administration, something that would have been kind of unimaginable when you think how close they were during the first Trump administration. But between hostage negotiations, between the continuation of the conflict, the famine, separately, relationship with the new Syrian government, all these points of real, real tension between Netanyahu and Trump and how they're approaching really the region in particular this conflict. Dan, do you have a sense that this might be a sign that this is going to get us closer to some tipping point where there'll be some sort of falling out, some change in US Policy? Or does that seem unlikely? Does it seem like the Trump administration just isn't invested enough to do that?
- [30:16]
Dan Byman
So this gets to an eternal question with the Trump administration, which is, do they have some sort of long term plan in mind? Do they have a coherent set factors they're considering in weighing reality against their policy goals and adjusting as they go forward. And my sense is that these issues in particular are heavily driven by, I'll say, kind of images in the media and by the day to day of commentary from an array of informal advisers of the president. And as a result, I think we're going to see, or I should say continue to see, fairly strong swings in US Policy where some days the images are of children in Gaza dying slowly of hunger and emaciated bodies. And that will lead to anger. And in other cases it's going to be images of violence where there is going to be at times support for Israel. I would also point out in this context the extremely aggressive actions of the Israeli military and the pogroms of Israeli settlers on the West Bank. And that's something that has to me profound long term consequences that the administration at the very least is giving a yellow light to.
- [31:33]
Scott R. Anderson
I want to add another factor to that which is I agree with what Dan said and with also your list, Scott, of the areas of apparent friction. There's this other factor which is that Trump, Trump was very offended by Bibi's call of congratulations to Joe Biden in the fall of 2020, considered it a personal betrayal. And he doesn't like Bibi anymore in the way that he doesn't like anybody who acknowledged that he lost the election. And so he's still very aware that support for Israel is essential to his coalition. He's also still very aware that Bibi pulls things off that he wants to be on the yes side of rather than on the no side of. And the Iran caper is a really important example of that. You know, he really tried to stop that. And then the moment it looked like Israel was, you know, wow, bombing some Iranian nuclear targets and, you know, really doing well in that, wanted in on the action. And he started saying we. Right. But there is no personal warmth between Bibi Netanyahu and Donald Trump. And among other things, and you know, Bibi is a very hateful person. He is not a stupid person. He's an extremely smart man. And he knows that Trump is an idiot. You know, it. This is not like one of those, you know, you get your Silvio Bear Lasconis and Donald Trumps and Marines. Bibi has got like 30 IQ points on a lot of these people and he knows he's dealing with a clown. And so there is real resentment on one side and I think it's fair to say contempt on the other, that is never expressed because Bibi has a lot to get out of Trump. But this is not a situation where they have a personal issue, warm relationship and they have done things that have really pissed each other off.
- [33:50]
Ben Wittes
Well, talking about people not getting along, let's go to another recent story where we seem to be having people making some amends, perhaps some unexpected amends. This is of course between the Trump administration and two chip manufacturers, Nvidia and amd, a few weeks ago. Earlier this year we saw the Trump administration continue a ban on Nvidia's ability to export certain high level, although not frontier model, meaning not the absolute tippity top front edge speed and efficiency processor, but fairly high end processors that it wanted to export to China and Chinese companies. We saw resistance from that or a hard resistance from that from the Biden administration which was repeatedly frustrated with Nvidia over a number of export controls issues around variations on chip models they were trying to use to get around expensive export controlled approaches, or at least you could see it that way from certain people's perspective. The Trump administration maintained that ban early in its stint, but a few weeks ago we saw a lifting of restrictions or signal that they were going to open the door to some of these exports. Now we have a new really unorthodox wrinkle in that arrangement. A 15% profit sharing agreement with the United States government where every chip of this particular model or these two particular high end models, one from AMD, one from Nvidia that is sold to these Chinese companies, 15% is going to go back of the profits is going to go back to the United States government. Kate, talk to us about how we've ended up here and how big a deal this is. This is such a strange, strange arrangement and it raises some legal concerns we can get to in a second, which is worth talking about a little bit. But talk to us about how exactly we got here and how big a deal this is in this broader question about how we need to manage access to our chipset for the AI race with China and with kind of the rest of the world more generally.
- [35:39]
Kate Klanick
Yeah. So I think that this is a truly kind of historic moment that we will look back on a little bit because it is really kind of a very outside the box arrangement that we haven't seen before. And you ask like where can we start with or how did we get here? I mean we can start that we got here with tariffs. Right. But there is, we can also say that we started here with the CHIPS act and like And a drive for the last number of years, starting with the Biden administration, to really kind of push manufacturing of chips into the United States and into a domestic market. Now, I don't know, like, how familiar listeners are with kind of the basics of the chip market, but there are many different types of chip markets. Like, not all chips are kind of created equal, but by far like the largest kind of primary manufacturer in the chip market industry is like the Taiwan Semiconductor Manufacturing Co. Out of Taiwan. And a lot of these companies that we're talking about today, amd, Nvidia, things like that, are fabless companies. They contract with TSMC to basically create most of their chips. And so when there's kind of this agreement that there's going to be this 15% payment straight to the United States for chips that are going to be manufactured in Taiwan, basically by these fabless companies that don't really have a direct manufacturing base in any one country. I mean, it is basically, I think. I mean, people are. It hasn't been widely speculated, but I think from a national security standpoint, it is a easy leap to make basically that this is some type of. That there are national security concerns between Taiwan and China. And this is some type of payment system. Now, technically, this is a payment system off of licenses and everything else. As you said. We can talk about the legal nitty gritty of this, but the main concern is that all of a sudden we are, are in this world where we are tithing manufacturers in this very creative way to basically be like, well, Taiwan, are you still worried about China? Of course they're still worried about. All Taiwan is worried about is China. And so like, well, why don't you make us this deal? And we see, we're seeing this. I don't want to draw huge kind of conspiratorial things, but it's hard not to kind of talk about like the. That fact, fact that we're just seeing Trump and this administration make deals in which the elephant in the room, or the background of all of these, or he's using these areas of the world that have certain types of dominance and certain types of industries, and he's exacting prices for U.S. continued protection. And that's happening in Europe and that's happening in Taiwan. And this is kind of the geopolitics of it. And so that is, I think, the top line of what's happening with, what we need to be looking at this chip story with. It is far more than just like, okay, we have this new, interesting, really weird out of the box deal with what's up with that. And there's some wrinkles with intel and other things that we can get into, but that's kind of the basics of what's going on right now.
- [39:04]
Scott R. Anderson
Delete Me makes it quick, easy and safe to remove your personal data online. At a time when surveillance and data breaches are common enough to make everyone vulnerable. Data brokers make a profit off your data. It's a commodity. Anyone on the web can buy private details about you. Your name, contact information, Social Security number, home address, even information about your family members. It can all be compiled by data brokers and sold online. And that can lead to identity theft, phishing attempt, and harassment. But now you can protect your privacy with Delete Me. I've said it before and I'll say it again. I have been using Delete Me since before they were ever an advertiser. With Lawfare, I have an active online presence. I'm out there. I make arguments that piss people off and sometimes there can be blowback for that. And my privacy really is important to me. I don't want people mucking around in my personality beyond that which I choose to make public. I've been a victim of identity theft. I've been harassed. I've never been doxed. But you know, I expect it sometime. And if you haven't, you probably know someone who has. Delete Me can help help. So take control of your data and keep your private life private by signing up for Deleteme now at a special discount for Lawfare listeners. Get 20% off your Delete Me plan when you go to JoinDeleteMe.comLawfare20 and use the promo code Lawfare20 at checkout. The only way to get 20% off is to go to JoinDeleteMe.com Lawfare20 and enter code Lawfare20 at checkout. That's JoinDeleteMe.com Lawfare 20 code Lawfare20.
- [41:20]
Kate Klanick
This episode is brought to you by Nordstrom. With summer winding down, it's the perfect time to refresh your style for fall.
- [41:26]
Ben Wittes
I can't believe I just said that, but time is ticking and Nordstrom has.
- [41:30]
Kate Klanick
Everything you need for all the seasons ahead. Discover top brands like Free People, Favorite.
- [41:35]
Ben Wittes
Daughter, Reformation Mother and Veronica Beard.
- [41:37]
Kate Klanick
Plus the latest trends, everyday essentials and beauty must haves you'll reach for again.
- [41:42]
Ben Wittes
And again without breaking your budget.
- [41:44]
Kate Klanick
And it's easy too, with free shipping, free returns and in store order pickup.
- [41:48]
Ben Wittes
Shop today in stores and@nordstrom.com BetterHelp Online.
- [41:53]
Dan Byman
Therapy bought this 30 second ad to remind you, right? Right now, wherever you are, to unclench.
- [42:01]
Ben Wittes
Your jaw, relax your shoulders, take a.
- [42:06]
Dan Byman
Deep breath in.
- [42:10]
Ben Wittes
And out. Feels better, right? That's 15 seconds of self care.
- [42:17]
Dan Byman
Imagine what you could do with more.
- [42:19]
Ben Wittes
Visit betterhelp.com randompodcast for 10% off your first month of therapy. No pressure, just help.
- [42:28]
Dan Byman
But for now, just relax.
- [42:33]
Daryna
Hi, I'm Daryna, co founder of OpenPhone. My dad is a business owner and growing up, I'll never forget his old ringtone. He made it as loud as it could go because he could not afford to miss a single customer call. That stuck with me. When we started OpenPhone, our mission was to help businesses not just stay in touch with touch, but make every customer feel valued, no matter when they might call. OpenPhone gives your team business phone numbers to call and text customers, all through an app on your phone or computer. Your calls, messages and contacts live in one workspace so your team can stay fully aligned and reply faster. And with our AI agent answering 24. Seven, you'll really never miss a customer. Over 60,000 businesses use Open Phone. Try it now and get 20% off your first six months@openphone.com tech and we can port your existing numbers over for free. OpenPhone. No missed calls, no missed customers.
- [43:35]
Ben Wittes
So let me dig into this a little bit because there's kind of two different ways you can look at the same set of facts, right? And the truth is, I tend to think is a more complicated melange of the two. One is like Trump as pirate, right? He sees leverage and he goes and he gets his slice, his 15%, the rake, as I call it, that's where the house takes a certain slice of every pot in poker. That's kind of the element of this. The flip side of this, which is something we saw come up in the Ukraine context, where we saw a vaguely kind of similar arrangement with the minerals deal, is that it is a way we're seeing certain actors appeal to Trump, Trump in a way to try and bring them in his interest apparatus to align their interests with his more directly in a way that will speak to him. So for Ukraine, that meant giving him a slice of their minerals. And that meant that their defense of Ukraine, the hope was this would make the defense of Ukraine something Trump saw personal interest in. And same for, same for Nvidia and amd, because here they really are getting something in exchange. They're going to be able to sell these chips in a way that they want weren't a few weeks ago or a few months ago and presumably the next time there's another new generation chip that's one step below from the frontier model. And Chinese companies want those, they're going to be able to do a similar thing there if the same model sort of holds. So how much of this is opportunism for Trump, opportunism for these companies? And if it's the latter or both, who's actually suffering? Like where is the net loss coming from in this regard?
- [45:06]
Kate Klanick
I mean, the debt loss is unseen. I mean, to a certain extent there is a net loss, I think, in the idea that there are national security things that you look after out of a sense not just of kind of doing the right thing and wanting to protect democracy around the world, but that there are, you know, that China not taking over Taiwan is a, is a strategic, is this a strategic advantage to the United States. So like, you know, basing that on a monetary investment, deciding that that is just worth a certain amount of dollars in the bank, right, Rather than kind of some overarching kind of value that is far greater than a 15% cut is something that is a, I think a dangerous long term strategy. And I'm sure a lot of people kind of agree. But the other thing is that it's not at all clear how this is actually going to end up resulting. I mean it's not necessarily clear that this is going to be good in any way or make things cheaper or easier for US Consumers that are buying the end products that use all of these chips. In fact, it will probably make them more expensive for obvious reasons. And then second of all, the other part of all of this is of course that Trump is always trying to increase the amount of access actual chip fabrication in the United States. And that is such a long tail for this type of investment. This is such a, it is such a long process to set up this type, these type of fabrication places. And yes, this has been happening for there, there are ones in Arizona and Texas that have been getting set up for the last number of years or the last year in particular. But this is still just a massive, this is still just a massive investment. And this is not clear 15%. It's unclear whether this is going to make a difference and push things towards this. The other thing to kind of make a statement about, as I said before, the intel competitor kind of thing. And I've been like noodling over this for a while and I'm interested in people's thoughts if like people think that the public dust up that Trump had with Intel's CEO About a week ago. I think it was just a week ago. God, that's like what is time in this day and age in which he was calling for his residency designation. Now intel is a very different company than AMD and Nvidia in terms of chips. They manufacture about 75% of their chips in the United States. And so like was like what was that about? Why was he suddenly in the business? Like there always is an angle from a deal making perspective about why he's like bullying publicly the intel CEO but like what does the Intel CEO have that Trump wants? And I been thinking about, I mean and maybe I'm just not thinking broadly enough but I'm very curious as to Scott, like Dan, Ben, like if you guys have thoughts on this, I've been looking for pieces out there about like what people have to say about there's any connection between these two chip events. Maybe they're totally independent, but I'm just kind of noodling on this and I'm you know, even listeners if you have things that you want to write in, in comments and things like that and tell me why you think these things are happening together, maybe they're totally independent.
- [48:17]
Scott R. Anderson
I have a question for you. I can't think of another thing in all of US policy in anywhere that says you're not allowed to do X but for national security reasons. But if you pay us 15% of bingo value of X you are allowed to do X. That seems to me to defy the concept of national security which says we are going to interfere with the market and prevent you from doing X no matter how lucrative it is. It doesn't matter how many nuclear weapons you can build and sell, you just not allowed to do it because it's, there's a national security issue at stake. And here we have a policy that says for national security reasons you are not allowed to sell these chips in this market it unless you give us 15%. And I don't understand that and I don't understand why, why it isn't understood to simply defy the entire concept of national security. And I want somebody to explain to me what I'm missing.
- [49:33]
Ben Wittes
So I think this gets at the real trade off to me that's so hard to square here is that except the ban was there for national security reasons. And I should say there's a very good New York Times op ed that came out maybe two weeks ago from Ben Buchanan, prior lawfarer contributor, Biden administration official on AI issue, senior advisor, special advisor to that effect. I can't remember exactly his role, but it's really useful laying out why the H20 chip from Nvidia in particular, what the ramifications could be for competition with China. And I will say I personally think that a lot of the hawkishness and competition are around China generally and including in the AI space is overhyped and too easy of a default to fall into. I'm not saying I disagree with Ben. He knows more than I do about this by a substantial margin. But I come in not necessarily willing to be a little skeptical about those arguments, but there's a compelling reasons here why there was an effort to restrict this particular chip set and these again, Frontier minus one chipsets. And it seems like for reasons that don't have or can't be addressed by a share of the profits in this particular case, which strikes me as so extraordinary.
- [50:40]
Scott R. Anderson
Yeah. So just to make clear, I am actually agnostic about the and I assume there when you said Ben may disagree with me, you meant Ben Buchanan. But look, if the administration's position. Ben Buchanan is a. Is a shockingly smart AI policy and a cybersecurity guy who wrote the AI documents for the White House in the last administration. He's an uncommon common mind. Okay. Uncommon minds get things wrong all the time. And if the Trump administration's position is that the Ben Buchanans of the world are wrong and it is fine for us to be sending selling Frontier minus one chips to China, then they should change the policy. But there I can't imagine what the situation in which it's okay to do it if we get a cut, but it's otherwise not okay to do it for national security reasons.
- [51:41]
Kate Klanick
I mean, Ben, have you been following the entire enforcement of this entire, like the enforcement arm of this entire administration? I mean, I feel like, I mean this. I mean. Yes, correct. And it also like I'm like, oh, do we have an entire law passed on the basis of national security around TikTok and are we just have. We literally has the DOJ like just literally decided to memory hole that into like into something like in a complete. I mean it's an act of Congress signed by the president and we are just.
- [52:15]
Scott R. Anderson
And upheld by the Supreme Court.
- [52:17]
Kate Klanick
Yes, and it's like. And it is. Yes. And it's just, I mean, I still am just in awe of these types of things, but then I'm also just, I'm starting to become a nearby nerd. So. Yes, you made a completely valid point about like, okay, so we decided that this wasn't going to be Allowed, but it is allowed if you pay enough money. And it is just this absolute kind of. There's no. I mean, you know, Scott, you use the term, like, the rake type of thing. And I do think that that's like, maybe the. The way to kind of think of this is that, like, literally, Trump is looking at the entire world as, what have we been giving that we should be selling? And there is this, like. And when you look at the world like that, then suddenly all of. There are just an infinite more number of markets. And it is. I mean, it is also just like a very dark place. And so, anyways, I think that. Ben, you're completely right. And also, I'm like, yeah, and like, the sun has come up again. Like, what a shocker that this is, like, the latest. Latest in how we're doing business with the world.
- [53:26]
Scott R. Anderson
Okay, fair enough. I do think, just as a. Like, I reserve the right to always point out that this policy is, you know, that our national security interests are literally for sale for 15% of the transactions value. Like, that is literally what this policy is, and it's kind of overt about it. Right. You're not allowed to do this for national security reasons unless you pay us 15%. And I do think we should preserve our ability to be shocked by that. But you're quite right. It takes an act of preservation.
- [54:09]
Dan Byman
Let me chime in here. One frustration of mine is the Trump administration tends to view national security policy, traditionally defined as subordinate to what it would consider economic security, as someone who is trying to follow US China relations quite closely. There are repeated statements by the kind of traditional US national security officials about the need to prioritize the confrontation with China. And then we proceed to put tariffs on almost every ally and partner in the region in a way that is devastating for them, enrages their populations, and then somehow wonder why cooperation is more difficult on the national security side for these governments. And I see this in the same family, which is, yeah, we have these national security concerns, but they're subordinate to trade, as Trump sees it, and to getting the right relationship, in an economic sense, with these both countries and companies.
- [55:15]
Ben Wittes
So we do need to deal with the legal part of this a little bit, and this being lawfare, of course. And it raises really interesting legal questions, because this sort of thing directly implicates a part of the Constitution that doesn't come up a lot, because nobody's really tried to do something like this before. That's what's known as the export clause. This is clause 5 of article 1. Section 9 of the constitution that says no tax or duty shall be out, laid, laid on articles exported from any state. That strikes me as a tricky obstacle for this sort of arrangement. It's an express bar in the section of the Constitution that takes power away from Congress. So this isn't just that it's not the power of President, it's not the power of Congress to authorize this. If you look into the case law, the Supreme Court has not been narrow in interpreting this. There have been cases where for example, Congress or the President has imposed, or the two together have imposed taxes on things like insurance of certain types of exports as a way to kind of indirectly tax array of exports. And they've said no, this runs afoul of this clause. This is a problem. And how exactly the President's going to implement this, I don't really know. I mean, is this just going to be a voluntary payment by these companies to the government? That itself is something that's not clearly something the executive branch can do is just accept donations from private donors to supplement the Treasury. Is this something that would be taken in like, like IIPA based tariffs or other tariffs? Okay, well then it's clearly a tax and you run into a bunch of IEEPA questions about whether you can do that. It's the International Emergency Economic Powers Act. You're into a bunch of other questions. In short, the legal viability of this I think is like a genuine open question, which is part of the reason it's so unprecedented. I'm not sure you couldn't get around it, but I haven't seen a clear explanation about why you can. Have you say anything about this, Kate, or anyone else digging into this? Have you seen any sort of thoughts or do you have thoughts about ways that maybe, maybe it'd be hard to vindicate these legal concerns even if there are underlying constitutional issues like the emoluments clause, similarly something that we all agree poses real problems but no one seems to be able to litigate it.
- [57:14]
Kate Klanick
Yeah, no, I think I actually was thinking exactly around the line of the emolument, like as you're presenting this. And granted I'm a first amendment private law girl stuck in this geopolitical world.
- [57:28]
Ben Wittes
And so like put that on a T shirt. I like it.
- [57:30]
Kate Klanick
I know, yeah, there was an N of one that wants that T shirt. The expert clause is outside my like, area of expertise. But you know, one of the reasons I love this beat is it's never boring. And so but yeah, it strikes me very much like I'm Like, I just kind of was like thinking as you were saying this, like, how would this get, how would this show up? Who would bring this? Who would bring an expert's clause claim? Like, if AMD and Nvidia both like are, and it sure looks that way given the press, like, happy to do business, happy to do it. We love President Trump. If this is how this is the, the party line, who's going to bring this claim? I don't know who would have standing Again, like, this seems to be taking away power from Congress. So like is there is there just like is. I have no idea idea. And I didn't follow very like the litigation around the emoluments stuff or the attempts thereof, like to kind of dig into this. But it would seem very similar to me that like I, you know, that this becomes one of these difficult questions of like, well, once again, like with everything else going on, who has the resources to decide to litigate this particular boondoggle and this particular, particular breach by the administration? And if the people who are being extorted are just rolling over and being like, okay, well, like, well, we're fine with it, then there's nothing, there's no harm and there's no ability to kind of bring that harm forward with the suit.
- [59:06]
Ben Wittes
That's the real question, right? Like competitor standing seems like the clearest way to do this, but it's not sure who that would be. They're all going to have similar heavy reliance on export control licenses to be able to, to do any business that's going to make them wary of coming crossing the Trump administration. They're all heavily reliant on the TSMC Taiwan Semiconductor Manufacturing company. I think I have that right. At least the vast majority of them. So they may not want to get on the wrong end of them if they are also okay with this deal. Dynamics are weird. The one party that strikes me that could add to it would be a state that maybe houses some of these companies. So maybe this is the case. I think at least Nvidia is California based, if I recall correctly. Maybe there's a case where we see another California VT Trump around a challenge of this in part because states have so much more success at pursuing standing, establishing standing and they have political incentives to do so. But I don't, I don't really know.
- [59:50]
Kate Klanick
I don't see this coming from a private company though. I don't see any private company wanting to cross this administration in this way. I just don't see it, I don't see it happening not on something especially that just has so many, have so many question marks in like the standing phase, like, I mean, let alone kind of like the constitutional law claims, that is, I mean, you might have some, you might be right. But I think that unfortunately, like, we're just solidly in the, like, who's going to, who's going to bring this and why? Like, why. What would be in there? There's just no, it's, it would seem like it would be a, a very fast way to undo the deal that they specifically like, are, are capitulating to.
- [60:32]
Ben Wittes
Well, something tells me we're gonna, this is not the end of this topic for us. We're gonna have reasons to revisit it, whether court cases or additional unique uses of some of these economic authorities. But speaking of unique uses of legal authorities, we have a third topic on our agenda for today, and that is a really bit of a gangbuster report from the New York Times reporting that President Trump has signed some manner of secret order. We don't have the order. It's not clear to me 100% with the new York Times actually has seen it itself. My sense is they haven't. They've had it described to them, although maybe I'm misrecalling the story, but has signed some sort of order authorizing the use of the military to combat international drug cartels, specifically those that have been designated as terrorist organizations. That's either as a foreign terrorist organization or a specially designated global terrorist organization, or at least we've seen cartels designated one or either or both in the last few months since Trump took office, targeting them for a variety of potential military action, including potentially the use of military force to kill or capture individuals involved those organizations. It is a dramatic move. No one can say it's something entirely unimagined before because of course, there have been whole novels and movies based on this, including Clear and Present Danger, the Harrison Ford classic and Tom Clancy. Maybe classic, depending how you feel about Tom Clancy. But it is not an unprecedented idea. We saw, of course, Republicans in Congress get revved up preparing an authorization for use of military force, a statute that would have authorized this and eliminated a lot of legal questions hovering around it in the last Congress. But it's still a big potential step depending on what the Trump administration is willing to do with it. That's what the Times story leaves unsaid, saying it's not clear what they're going to do with this yet, but Trump has at least authorized it and authorized them to look into it. So Dan, I want to come to you on this. Obviously, you are somebody who's spent a lot of your career looking at efforts to combat conventional terrorist organizations. Cartels are not that, even if they are now being classified as terrorist organizations, not illegitimately, necessarily. In many ways, they check a lot of the boxes and they do engage in similar activities, if not even though they can be distinguished a lot of different ways. So talk to us about what the motivation is for this sort of step, how much it makes sense, how much it doesn't make sense, what parts of it may or may not make sense, and where it fits into the broader arc of counterterrorism. And to the extent you feel qualified to talk about a counternarcotics policy, sure.
- [62:53]
Dan Byman
So this has been a really dramatic shift in, in also U.S. national Security Policy. President Trump really, with his address to Congress and now these orders, has been steadily increasing intelligence and military efforts against cartels. We've seen the deployment of a couple Arleigh Burke class guided missile destroyers to the Caribbean and Pacific theaters. We've seen land near the US Mexico border become an area where US Troops are based. So this is part of a broader trend. It's a very dramatic shift in some ways, but it's certainly not a surprise. The idea of going after these groups that kill thousands of people in Mexico on a regular basis that are responsible for drug trafficking certainly is appealing. And I think a lot of the use of the military, as we're seeing President Trump do domestically in the United States, is really because it's a way of him saying, hey, I'm getting tough. Look, I'm using the military. And that is a card he is playing again and again in a number of very different contexts. So I think a lot of it is political signaling. But there are things that we might see. We might see Special Operations Force raids. We could see significant intelligence cooperation beyond what has been passed before. It's possible we could see some, ideally from a military point of view, you know, precision strikes against a set of facilities. And also I think a lot of it might be maritime operations, where there's interdiction or efforts to really kind of cut off a lot of the back and forth along maritime borders. A lot of it's going to be about intelligence. The day to day of counterterrorism was knowing who is who and where they are and what they're up to. And that's a lot of that's the same with counter narcotics. So I definitely think there are lessons, I definitely think there are capabilities that can be brought. But There are a couple important things to highlight, and I'll use US Mexico as an example, although I think a lot of this applies to other countries in Latin America. One is that in Mexico, there was a concerted effort to go after drug kingpins, and it backfired in terms of the level of violence within Mexico itself. That by reducing the coordination within the cartels, you created a lot of competition, but that was an exceptionally violent competition where cartels are killing people right and left and in a very entrepreneurial way, competing with each other. So you had a lot of drug production and a lot of violence, in part because of a decapitation strategy. Also, Mexico, for understandable historical reasons citizens, is exceptionally sensitive both to the use of the US Military and to the idea of US Unilateralism, that the United States is simply telling Mexico what to do one way or another. And Mexicans would point out, hey, the demand for drugs in the United States is creating huge problems in Mexico. And also the United States is exporting large amounts of weapons from the United States to Mexico and causing violence to be much more worse there. So there are a lot of complaints and concerns on the Mexican side, and the very open, at times hostile rhetoric of Trump administration officials worsens those nationalistic concerns, and then very visible military operations could do so as well. As I understand it from the initial press reporting, it's actually a little unclear what the US Military would do. And I think. I think it's quite possible, to me, that hasn't been decided, that we're simply at the stage where they're exploring a bunch of different plans, and they'll see which ones work and which ones don't. If it's going to be successful, it should be done in cooperation with the government of Mexico. They will have the intelligence on the ground, but especially they will have the legitimacy. But one benefit, and I want to be clear, I think this is a real benefit of Trump's saber rattles, is that the Mexican government is running scared. And part of this is on tariffs, and part of it is a fear that the United States will nevertheless do unilateral military operations, even if they're counterproductive, but that that would be a disaster politically for the Mexican government. So I think the Sheinbaum administration is much more willing to work with the United States, and it has been going after cartels more aggressively than its predecessor. So I think there's a real possibility of getting significantly increased cooperation, and a lot of that would be due to Trump administration policies, to give them credit. But what they need to do is recognize that this is a moment to forge a stronger security cooperation relationship rather than just disregarding Mexican concerns.
- [67:52]
Ben Wittes
And if I recall correctly, my recollection is in the first few weeks or months of the Trump administration, there were actually some media reports about increased U.S. military cooperation with Mexico around certain counternarcotics efforts. I think specifically about use of drones and certain other surveillance technology that was being used. I don't know if it was actually on the intelligence side or on the military side. My recollection is on the military side. So we've seen Mexico open up to some below the table quiet forms of cooperation in the past when under similar pressure. And even though we've seen President Scheinbaum say publicly in the last few days, hey, look, we're not going to bite into this. We're not going to accept in involuntary operations here. They've also said in the same breath, like you said, Dan, we're open to cooperation on this. So there is a little bit of open door there. The real question is we may not fully know exactly the scope of what they're agreeing to cooperate on because the details have been kept relatively quiet, at least in certain past cases. Ben, I want to come to you on some of the legal technicalities around this. In particular, one angle of this that I think is very interesting and gets back to what is, I think, a bugaboo for many national security lawyers over there that's always worth resurrecting is that they are specifically tying this military action to designation of these cartels as terrorist organizations under two separate regimes. That is more or less my reaction as well, something we've seen prior other policymakers say in the past, people in Congress say in the past that somehow these relate to each other. We saw Secretary Rubio say something quite expressly saying once we designate these groups terrorist groups, all of a sudden we can use more intelligence as assets and military assets to do things to them we couldn't do before. Is that true? As far as we know, no component.
- [69:31]
Scott R. Anderson
Of it is true. And it conflates, I think, three separate regimes. So one is the regime, is there an authorization to use military force? Right. The question of when is it appropriate for the president to use military, military force, either pursuant to an act of Congress or on his own independent constitutional authority. And in no sense does that depend on whether a group is a designated foreign terrorist organization, although the two collide in the sense that there is one authorization to use military force against a group of people who are also happen to be designated foreign terrorist organizations, that is the 2001 Use of Force AUMF. The second regime is. So one question is, does the President have the authority to conduct the military action in question? And that does not depend on in any way on whether somebody is a designated foreign terrorist. Then the second regime is one where you designate foreign terrorist organizations, and the only consequence of a designation is that it becomes a criminal offense to give material support to that organization. So in other words, if you designate Trend Aragua as a foreign terrorist organization, it does not mean you can use military force against trends, nor does it mean you can invoke the Alien Enemies act to deport a whole bunch of people who are associated with Trend Aragua. What it does mean is that if somebody gives material support intentionally, knowingly to Trend Aragua, then they would be prosecutable under the Material Support Law. The third area, which this also conflates, is an area actually that, Scott, you know a lot more about than I do, which is economic sanctions. Right? So there are a bunch of statutes, most importantly, iipa, that allow the President to point at people and say, you are a specially designated foreign terrorist, which is a different regime from a designated foreign terrorist organization under the Material Support Law. And then by doing that, restrict all kinds of economic activities with you. But this, again, again, allows your assets to be frozen. It allows you to be, you know, criminalize certain transactions with you, but it doesn't allow us to blow you up. And so I think when they say this, they are conflating multiple regimes that are designed to do entirely different things, and they make it sound like it's, oh, well, because you're a designated foreign terrorist organization, we're allowed to conduct military operations in Mexico. And that is just. It's a little bit like saying that because, you know, something is an endangered species, we're allowed to conduct military operations in whatever country it lives in to protect it. I mean, it's just kind of gobbledygook. But you know this area of law at least as well as I do. How much of that is even controversial.
- [73:06]
Ben Wittes
I 100% agree, and I just do not understand why the persistence of this link that has been around since I started studying this area in law school, you know, 15 years ago at this point, for the simple reason that, that people don't appreciate, the president doesn't need any of this to do this sort of military action. The bar is really low for what the executive branch says. Remember, presidents pursued pretty substantial military actions in Libya in 2011 and Syria in 2018. In situations where there really was no colorable claim that American citizens were being threatened or the United States were being threatened militarily at all. It was really just that there's risk it was going to undermine regional stability in a way that compromised US national security interests. And that was a enough to justify that sort of military action, at least up to a certain scale. You can see that argument here. The domestic law argument is not hard for the administration to make given how broad and deferential the standards applied, at least by the executive branch are. And the courts haven't bothered to check that, and no one has successfully checked it meaningfully in the last several decades. Much bigger question is international law, which these designations have no bearing on because no state, and I will include the United States in that, has thus far accepted the sale of narcotics as an armed attack warning, a response, a military response under the UN Charter. Under international law, that's usually what you need is an armed attack or the imminent threat of an armed attack. United States views that very broadly and has a low bar for what constitutes an armed attack compared to the rest of the world. Nothing like this low in its history. And yeah, you may have cases where cartels have targeted American nationals, threw a grenade at American consulate in one much discussed case, but that just allows military action to address that sort of threat, not to take out every other cartel imaginable in the world. This would be a really, really dramatic step in terms of global policy, in terms of how the United States frames its military action to the world that administrations really haven't pursued before. Even in the Panama case, maybe the closest parallel, to some extent, which had a narcotics element, it was much more tied to the fact that you actually did have acts of violence against US Soldiers and you had a bunch of treaty rights and a constellation of above, bunch of other interests and arguments that were put forward by the Bush administration at the time. Not particularly persuasive in that case, according to a lot of people, but nonetheless something more than this. And that was a one time limited operation. This seems to be setting off potentially a campaign if you were to take it at its most aggressive lean. It's just a strange. It's an extraordinary provocative action on the international law front. But now in the domestic legal front front.
- [75:29]
Scott R. Anderson
Yeah. And just to be clear, there are two separate ways you can do it on the domestic legal front, neither of which is especially legally controversial. One is through the military and one is as a set of COVID actions, which by the way, you can kind of do through the military now too by just detailing military people to the CIA. And so. And none of this depends on whether it's a designated foreign terrorist organization.
- [76:01]
Ben Wittes
Exactly. Well, folks, that brings us to the end of our time together for this week. But this would not be your actual security if we did not leave you with some object lessons to ponder over in the week to come until we are back in your ear holes. Dan, what do you have for us this week?
- [76:15]
Dan Byman
So I've been playing the game Imperial Struggle, and some folks may know it and others may know its very popular predecessor, Twilight Struggle. This is truly a geek's joy. It is set in the 1700s and the struggle between Britain and France, but it's an extremely well designed game and great fun and a chance to kind of learn or relearn some history that I probably should have known in the first place.
- [76:47]
Ben Wittes
Extraordinary. You know that I am also a passionate lover of all sorts of nerdy games, so I'm intrigued. I've heard of this. Are you playing the board game or is there a video game version I'm not aware of?
- [76:57]
Dan Byman
Unfortunately, there is no video version of. It is simply a board game.
- [77:00]
Ben Wittes
Oh, exactly.
- [77:01]
Dan Byman
So I have to drag you over, Scott.
- [77:02]
Ben Wittes
Yeah, please do. Please do. If my children ever let me out of my house again, we will see. We'll see if that happens. Ben, what do you have for us this week?
- [77:10]
Scott R. Anderson
I have £100 of marking chalk because on Friday the President of the United States is going to host the president of Russia in Alaska. William Seward is turning in his grave and they are going to discuss the fate of Ukraine in a manner that is sort of reminiscent of people showing up to carve up Poland and, you know, in the 18th century, Catherine the Great and showing up and carving up Poland. And I am outraged about it. But I'm always determined to be cheerfully outraged. And normally I would respond to this sort of thing by projecting flying out to Alaska with my lasers and projecting on some target in Alaska calculated to be maximally offensive to both presidents. However, both of my lasers are currently POWs in the custody of the National Park Service police. And so I can't do that. And so all I can do is order 100 pounds of blue and yellow marking chalk and go on Friday, assuming the chalk arrives on time, to the Russian embassy here in Washington and pour it out. And I'm going to do this in broad daylight because it is entirely legal. And I'm going to pour it out on the sidewalk and make a giant Ukrainian flag on Wisconsin Avenue. And then I'm going to add a special Touch, which is a very large amount of hairspray to try to get it to set in so that when the Russians come out with a hose, it will not dissolve quickly. And I'm going to go out there and I'm going to do it it, and then I'm going to stay to film the Russian reaction and see if hairspray plus chalk does or doesn't equal frustrated Russians. So that is my plan for Friday. And I'm asking all of you, how are you celebrating Alaska Summit Day?
- [79:32]
Ben Wittes
You know, if nothing else, you will put a hole in the ozone directly over the embassy so that for that, that win in the books at least. All right, well, there we go. That is a much more ambitious Friday than I had planned. Well, for my object lesson this week, I am embracing a mea culpa. Listeners of the podcast will know I am a valued member of an elite bean society and a bean lover and a bean eater. Lifelong vegetarian, I am also a home pizza perfectionist, but never have the Twain meat. And in fact, there is a famous, famous recipe for online chefs and people come at home out there. Pizza beans by Deb Perlman of Smitten Kitchen. That gets talked about a lot, and I've always eschewed it. I thought it seemed a little bit, you know, beneath me, if I'm being honest to say, oh, I'm just gonna take beans and put them in a bunch of pizza ingredients and bake it. Gross. I was not into it. My wife made it the other week and I have to say, it is absolutely phenomenal. Like, delicious. Like, I cannot eat enough of it and it's phenomenal to try. So this is my mea culpa to Deb Perlman and the wonderful people at Smitten Kitchen. I'm sorry, I. Your recipe, as long as I did it, is amazing. She makes it actually with gigante beans, which are Those giant, like, 3 inch long Lima beans that are truly amazing. The secret is if you make them at home, you get frustrated. You got to soak them for like two or three days. You really got to let it soak for a long time in salted water. But, God, they're amazing. It's just an amazing recipe. I highlight it and I'll be honest with you, I even think I would leave the cheese off of it, which is gratuitously layered on top to make that pizza effect. I think without cheese, it would be just as good. It's phenomenal. So I'll throw that in the show. Notes, notes. That's my recommendation. For this week, Deb Perlman's Pizza Beans. Really worth it. Really phenomenal. Much more sophisticated than you may think. If you're a snob like me, Kate, bring us home. What do you have for your object lesson this week?
- [81:09]
Kate Klanick
Well, mine is much more edible also than. It's similar, kind of in quantity. I have 14.
- [81:15]
Scott R. Anderson
You can eat chalk and hairspray only.
- [81:19]
Ben Wittes
For a little while and then you can't anymore.
- [81:23]
Kate Klanick
There is. I have 14 pounds of blueberries and 10 pounds of peaches and about 20 pounds of tomatoes and cucumbers. And so I am in like hard prepper mode preparing for all of those things. I'm sure that, like, you know, when they. That my Canadian blueberries are going to get tariffed out of existence. And so anyways, I, I am just going to kind of. I'm going to kind of eat my way through the weekend and it seems. Please don't eat the hairspray and chalk, Ben.
- [82:00]
Ben Wittes
Fair enough. This is the season for tomato, peaches and corn. Even together, much underappreciated. Great combo. Really worth digging into. So, you know, get out to your farmers markets, check it out today, Throw some support to your local producer. Well, folks, that brings us to the end of this week's episode. Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfairmedia.org for our show page with links to past episodes for our written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series. In addition, be sure to follow Lawfair on social media wherever you socialize your media, be sure to leave a rating or review wherever you might be listening. And sign up to become a material supporter of Lawfair on Patreon for an ad free version of this podcast, among other sponsors. Special benefits. For more information, visit lawfirmedia.org Support our Audio Engineer and producer this week was Noam Osman of Go Rodeo. And our music, as always, was performed by Sophia Yan. And we are once again edited by the wonderful Jen Pacha. On behalf of my guests, Kate, Ben and Dan, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye. This is Rose. Rose's flight is delayed again.
- [83:13]
Scott R. Anderson
At this point, she has walked the.
- [83:15]
Ben Wittes
Entire terminal twice and has memorized every.
- [83:17]
Kate Klanick
News headline on the airport tv.
- [83:19]
Dan Byman
All she really wants to do is take off.
- [83:24]
Kate Klanick
Good thing Rose has a library of free ebooks with Prime. Suddenly she's chasing bad guys, kissing hot.
- [83:31]
Dan Byman
Vampires, solving murders, you know, living her best life.
- [83:35]
Ben Wittes
Free ebooks library. It's on Prime.