← The Lawfare Podcast
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- [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]
Benjamin Wittes
Ryan Reynolds here from Mint Mobile. I don't know if you knew this, but anyone can get the same Premium Wireless for $15 a month plan that I've been enjoying. It's not just for celebrities. So do like I did and have one of your assistant's assistants switch you to Mint Mobile today. I'm told it's super easy to do@mintmobile.com Switch upfront payment of $45 for 3 month plan equivalent to $15 per month Required intro rate first 3 months only, then full price options available, taxes and fees extra. See full terms@mintmobile.com Are you still quoting 30 year old movies? Have you said cool beans in the past 90 days? Do you still think Discover isn't widely accepted? If this sounds like you, you're stuck in the past. Discover is accepted at 99% of places that take credit cards nationwide, and every time you make a purchase with your card, you automatically earn cash back. Welcome to the Now It Pays to Discover. Learn more at discover.com credit card based on the February 2024 Nielsen report Ben, I understand from Slack I've been out of town for most of the last week, but I saw on Slack there's a new member of your family household coming in. The Lawfare season of fecundity has begun yet again.
- [01:45]
Scott R. Anderson
In a way that's true, but it's not a grandchild fair. Yeah, we seem to have acquired a puppy the other day and I haven't named it yet. And there's been a lot of Lawfare Slack activity associated with mostly jesting names for the puppy.
- [02:06]
Benjamin Wittes
What is the predominant strategy? Because I know we've had a Slack back and forth, I have a particular naming strategy I've shared with people I know other people do too. What did you guys settle on?
- [02:14]
Scott R. Anderson
Right, so there's the Scott Anderson naming strategy, which is that all dogs should be named either for something you can eat for breakfast or after some other animal.
- [02:26]
Benjamin Wittes
And note, I'm a vegetarian, so those are mutually exclusive categories. Not true for everyone, but in my case, mutually exclusive.
- [02:33]
Scott R. Anderson
And then there's the Dan Byman strategy, which is to name small cute dogs after Greek heroes. And I'm closer to the Baiman theory. I think I'm going to do some kind of a Greek name. But even with that, you know, you end up with a large range of possibility.
- [02:54]
Roger Parloff
How about La O Ka Wan? Does that mean anything to you?
- [03:00]
Benjamin Wittes
No, I like it. I don't know how I feel yelling it in the park at people chasing after a dog, but I like it.
- [03:07]
Roger Parloff
He was a Trojan that was going to warn the Greeks about the. The Trojan Horse and the gods, or I guess Greek gods afflicted him and his two sons with an enormous serpent who killed them, or several serpents. There was this famous statue of Laocoon struggling with these snakes from Greek times that was unearthed during Michelangelo's time. And he was very taken with it and it sort of inspired him. And it's actually the first sculpture in what became the Vatican Museums.
- [03:57]
Scott R. Anderson
Incredible museums.
- [03:59]
Roger Parloff
Yeah. Yeah.
- [04:00]
Scott R. Anderson
Well, so that's a little bit long name for this very small puppy, but.
- [04:06]
Benjamin Wittes
Especially if you have to explain it the serpent thing, it's hard to do.
- [04:09]
Scott R. Anderson
A Wikipedia entry, but we've had some. We've had some great suggestions. Mike Pesca from the GIST suggested that I name the dog Blusa, which is Greek for shirt, because then I could have a dog named Shirt. And of course, Kate Clonak suggested naming the dog Hootie PC Small group, which would have to be Hooty for short. So, you know, there's a lot of, lot of possibilities.
- [04:38]
Roger Parloff
JGG would be short and sweet.
- [04:41]
Scott R. Anderson
Yeah, it's true. So the following is a true story, but during the priest sexual abuse scandal, a very devout Catholic friend of mine got a new puppy and he named her Bernie after Cardinal Bernard Law, so that when she misbehaved, he could say, bad Bernie. Bad Bernie.
- [05:08]
Roger Parloff
A friend of mine named their cat Quat so she could lean out the door and say, come Quat. Come Quat.
- [05:15]
Scott R. Anderson
That's excellent.
- [05:22]
Benjamin Wittes
Hello, everyone, and welcome back to Rational Security. I am your host, Scott R. Andersen. Thrilled to be back with you for what may be the best week of Rational Security news and topics I have ever encountered in multiple years of doing this show. And I'm thrilled to have here to talk it over with me, two special guests. First, Rational Security Co Host Emeritus lawfare Editor in Chief Benjamin Wittes, back on the pod. Ben, thanks for joining us.
- [05:46]
Scott R. Anderson
Hey. Hey.
- [05:47]
Benjamin Wittes
And we are also joined by lawfare Senior Editor, Legal Correspondence, par. Excellent, Roger Parloff. Roger, thank you for coming back on the podcast.
- [05:55]
Roger Parloff
Thanks for having me, Scott.
- [05:57]
Benjamin Wittes
Let us get right into it because it has been a big week of national security news. I'm going to be honest with you. There are a lot of weeks where I struggle a little bit to decide what we're going to talk about because I'm like, I don't know if this will be a good topic. Good conversation this week. Nothing. Three topics off the bat. Three of the best, most complicated, completely ridiculous stories I've ever encountered. And I'm really excited to get to dig into them with you guys. Topic one for this week, oopsec in a strong contemporary. There you go. I knew you were going to get. I knew it was going to get off. Like I do want to say, I got a lot of people write me in like multiple, I think half a dozen at least write me to say you should do a segment entitled New Phone Hooties Hootes, which is a really, really good one in writing. It works well, less well out loud. I tried it on a few people, but I would oopsec, I think captured it adequately, hopefully in a strong contender for the most ridiculous national security story of the year, Senior Trump administration officials appear to have planned a series of airstrikes in Yemen that took place earlier this month through the social messaging app Signal, and they appear to have included the Atlantic's editor in chief, Jeffrey Goldberg, by mistake, giving him access to detailed war plans and internal policy discussions that he has now mostly made public. How irresponsible were the Trump administration's actions, and what will the consequences be? Topic 2 secrets, lies and Bureaucratic Red Tape the Trump administration employed the Alien Enemies act to remove alleged members of the Venezuelan gang Trenda Aragua, or tda, to a notorious prison in El Salvador last week, just before, or perhaps just after a point of ongoing inquiry, an order from a federal district court judge directing them not to. And now the Trump administration is invoking the state secrets privilege and seeking appeal to avoid having to disclose more details regarding its policy choices. How firm is the legal ground that the Trump administration is operating on, and how will the courts handle it? And topic 3 how do you think we keep these shoes so white? Leading white shoe law firm Paul Weiss kissed the feet or perhaps licked the boots of President Trump this week in an effort to escape the highly discriminatory sanctions Trump recently imposed on them for their past ties with a lawyer who worked on his criminal case in New York on behalf of the prosecution. What could their acquiescence mean for big law and the legal industry more generally? So for our first topic, Ben, I want to start with you because you have had lengthy conversations with another Rational Security co host emeritus who is deeply involved with the story now at the Atlantic, that is, of course, our beloved Shane Harris, my predecessor in the host a Chatter role here at the podcast and former co host of Chatter. He and Jeffrey Goldberg have been working on the story, sourcing it, providing additional context for this really remarkable thread or chat that Jeffrey Goldberg was included in on Signal. Talk to us a little bit about what we know right now, where the stories come together and what you've gleaned from your conversations with Shane that may have helped flesh out a little bit more of the details around the story. What makes it just so remarkable.
- [08:43]
Scott R. Anderson
Yeah, so what we know at this point is everything, because the administration confirmed it all and they're arguing only over analytical points, not really over factual points. Here's what happened. The administration decided to to have a military operation against the Houthis. And by the way, I want to commend them for that decision. The Houthis have been an irritant in the world of international commerce for too long, and the previous administration was too hesitant in dealing with it, left too much of it to Israelis, and this administration decided to be much more decisive about it and defend freedom of navigation and good for them. That's where the good policy making ended and the reckless chaos began. Because as one does when one is setting up a major military operation that involves, you know, U.S. personnel and their lives, of course, you do it by group chat. And so the National Security Advisor set up a group chat. And as you always do when you set up a group chat, for example, when I accidentally, when I try to involve our Goat Rodeo friend, Ian Enright, I sometimes accidentally involve Ian Bassin, the head of Protect Democracy, because, you know, you type Ian and then you click on the first Ian that shows up and you don't notice that you've invited Protect Democracy instead of goat Rodeo. And, you know, the National Security Advisor did something kind of similar. He seemed to want to invite somebody and accidentally invited Jeff Goldberg of the Atlantic, who it turns out is a very good person to invite to because he's interested in Middle east politics. He's, you know, knows a little bit about the Houthis. And so, you know, he knows his way around a Houthi military operation. So it was a, you know, a good mistake to invite Jeff. So as the listeners probably know by this point, the Jeff initially thought this was some kind of fishing expedition and mistake or a hoax. But as the kinetic military operation played out and was previewed in this group chat with senior national security officials, he realized he was dealing with the real thing, which the administration Then confirmed with really two wrinkles that make this story even weirder. The first is that they belligerently contended that there was no classified information at issue in it, which to anyone who has ever asked for information about a forthcoming military operation and been told that's the sort of thing we can never talk about ever, it doesn't have the ring of truth to it. So that was the first thing. But then the second thing was that weirdly, the administration had two major congressional testimonies coming up, one yesterday and one today, both of whom involved the intelligence community's leadership. John Ratcliffe and Tulsi Gabbard, the dni, both of whom were on this thread and therefore had to answer for it. So because of their claims that nothing classified was shared the on it, which is patently untrue, by the way, the Atlantic made the correct, in my judgment decision that they should release the whole thing since the administration takes the view that it was not sensitive and they were being over cautious. So this morning they released the entire thing, which does include a lot of very specific targeting information and timing information about a military operation in Yemen. So look, it's a crazy situation and Pete Hegseth, who is now on an Asia tour, is going to have a lot to answer for when he gets back, as do I think, Tulsi Gabbard and John Ratcliffe, not really for their participation in the thread, which in their cases is more defensible, but for their patently untrue testimony about it.
- [13:43]
Benjamin Wittes
Yeah, it is really interesting and I think, actually look, I think it's worth drilling down a little bit in the information that's in here and its likely degree of sensitivity because that's the defense we're hearing from the Trump administration primarily, which is that, well, first Pete Hegseth said there was no war plans being shared on the signal chain. That's absolutely wrong. Clearly there is. That's how he gave a TikTok of projected military actions two hours before they started to the people on the signal chat.
- [14:10]
Scott R. Anderson
But and then real time damage reports.
- [14:12]
Benjamin Wittes
And a real time damage report after the fact that Mike Walt, the National Security Advisor, shared. That's exactly right. And then elaborated on on and greater clarification for the vice President. I will say from my experience around these things in government, I don't think the information on this is likely to be TS or top secret. And I think, and that is why you see the administration steering its defense in this. They're saying, well, this wasn't highly classified deep secret information because it's very high line and top line. Right. The timing is a little wonky. The timing is the sort of thing that I don't think you would normally see go out in communiques to allies or that sometimes go out an hour or two before military action starts. Often narrower time from that or to Congress. But the general tenor of a lot of this information, you could see at a high enough level that it wouldn't warrant top secret classification, because we have a chronic over classification problem in government. In part, I suspect a lot of this would be classified secret or in some other sensitivity if it had gone through a process. Again, this is sort of derivative information that is kind of weird to figure out how it fits.
- [15:20]
Scott R. Anderson
I'm sorry, Scott. No, this is information that if the Houthis had had access to it when Jeff Goldberg had had access to it, they would have gone into an underground bunker and they wouldn't have been killed in the raid. This is real time operational information. Now, I don't think it's that sensitive now, but at the time that Jeff Goldberg is receiving this information sitting in a parking lot at a Safeway, the vitality of the mission depends on the Houthis not knowing it. And so imagine that you had accidentally given it to Glenn Greenwald instead of Jeff Goldberg, to somebody who has a very adversarial relationship with the New York, with the government's national security interests, instead of somebody who has a frankly lawfare like sensibility about national security information. And Glenn had tweeted it, which is exactly what he would have done. The mission would have failed.
- [16:28]
Benjamin Wittes
I don't agree with that. This gets to the exact point I'm trying to make. Classification doesn't correspond with the responsibility of information whether to share it or not. The classification level doesn't automatically slap on because it relates to military operational details. Sure. I'm not.
- [16:43]
Scott R. Anderson
I'm not saying. I'm not saying it's TSSCI or anything. I'm saying it's operational information. There is some of it that actually involves US sources and methods, albeit at a pretty high level of altitude. And it relates to a military operation that is currently going on. It's exactly the sort of thing that you don't share.
- [17:08]
Benjamin Wittes
No, no, I think that's exactly right. But I think the point here is when you hear the administration talk about how this wasn't highly classified, I think it's important to bear in mind that that's not the threshold as to whether this was a responsible thing to share or not. I wouldn't be surprised if we see the administration come out with information suggesting this information actually had been declassified at some point shortly before. Shortly after was shared. Because information like this is the sort of thing that you can get communicated to allies or in other contexts or even in press releases, and it is declassified at some point before that information is made public. Two hours before at this level of detail. A little weird for me. Like I said, I think that's surprising, but it's not that big a departure from it. That doesn't mean that releasing this, putting it out in the open in a forum where anonymous third parties obviously could be, in this case absolutely. Were included, makes it any more responsible. Classification is not the only line for responsible management of information. And when they try and bring that in, I think it's a faint. I think they're trying to shift on a more favorable grounds about this information, talking about its classification level as opposed to the handling of what was sensitive information, whether it was classified or not.
- [18:10]
Scott R. Anderson
What about when John Ratcliffe says that we'll be better positioned from an intelligence point of view in a month because we're. We're mobilizing our assets in Yemen?
- [18:23]
Benjamin Wittes
Yes, maybe. I don't know. Is that the sort of thing you.
- [18:26]
Scott R. Anderson
Would share, but you would go on television and say, no, but it is.
- [18:30]
Benjamin Wittes
The sort of thing you could see in a, like, secret document, as opposed to a TS document, you know, or even a confidential. Maybe. I don't.
- [18:37]
Scott R. Anderson
Let's get a different way. Imagine somebody, let's call him Schmedmerd Schmoden, stole this information and gave it to, let's call him Smart and Schmelman, who then published it. Do you have any doubt that Schmedman Schmoden would be prosecuted?
- [18:59]
Benjamin Wittes
Very little. Yeah. A lot of this looks like a lot of information that was in those documents. A lot of it was Unsull. I'm saying there's no doubt about this, that the handling of this information, even if it was unclassified, this handling of this information would at a minimum, have major career and classification ramifications for the people involved and could well result in prosecution under probably the Espionage Act. The same thing. We see people prosecuting intelligence analysts and contractors for bringing documents home with them. That is like the basis of a number of Espionage act prosecutions that we've seen taking place. And that's kind of the virtual equivalent of what's being done here. You're bringing information into an environment that you know is unsafe, even though you're not actively seeking to. You know, expose it to third parties, even though you may not have, although in this case, it was being exposed to a third party, even though you may have thought it wasn't actually being exposed. By bringing that less sensitive, secure space, you're causing problems, you're exposing risk. And that is something people have faced criminal and certainly career consequences for in the past at all levels. We'll see if that happens in this particular case. Roger, let me come to you on an aspect of this. As somebody who's looked at this case and has spent. I know you spent some time in government as a prosecutor, but I don't believe you spent time in the classified information realm. What reads to you as the most important parts of the story as an observer? Is it the handling of this misinformation, or is it some of the other insights we're getting from the signal chain? Because there's a lot in there about conversations with J.D. vance and other administration officials, Stephen Miller's weird role as a kind of final decider in interpreting the president's views on things, which was very interesting. What jumps out to you about this conversation that's of particular interest?
- [20:35]
Roger Parloff
Well, I did think it was interesting. There was sort of a passage where J.D. vance was making some sort of condescending remarks about, I don't know if Trump realizes this or I don't have the, the text in front of me. But as soon as it became public, his spokesperson was furiously back, you know, making it clear that, oh, there was never any daylight between him and Trump. And that sort of backstage stuff was interesting. I really can't add to yours and Ben's analysis of the national security implications of this. The other thing that just sort of jumps out is that very fortuitously timed congressional hearing and the way that they are all, you know, circling the wagons and brazening their way through. And, you know, when these people were appointed, we heard this euphemism loyalist. And loyalist is a euphemism for people who will say intentionally false things to protect Trump or what they perceive is in his best interest. And that's what I thought we were seeing. It's sort of breathtaking.
- [22:08]
Benjamin Wittes
One aspect of this, of the pushback that I thought was really interesting and is clearly a talking point because we have seen it echoed across the entirety of the Trump administration media apparatus, from Carolyn Levitt, the press spokesperson, to statements by waltz, by Vance, by Hegseth, is specifically attacking Jeffrey Goldberg as a hack, as somebody who's Trump hater and who's generated scandals and stories along these Lines. Those three aspects of it are so consistent in the way it's being reiterated across different people in offices. It is clearly a White House distributed talking point. That is how you can tell is when a weird selection of three descriptors keeps reappearing. That's not a coincidence. That's because somebody wrote it that way and handed it out to people and the Atlantic to some of that as a whole. But really focus on Goldberg individually. What do you make, Roger, of kind of how he's handled himself in this? From a journalist perspective, my sense is that he took a degree of responsibility in part because maybe he had doubts about its veracity from the outset. That's been pretty extraordinary. Kind of above and beyond what I would expect, frankly, a lot of reporters to do. If you had handed this to a, you know, Washington Post's line national security reporter, I think they may have been inclined to move, frankly, even faster and more urgently on it. But instead, this was a very slow baked story. These airstrikes happened two weeks ago at this point. Is my sense of that right, Roger? Or do you think that's a little bit of a different. Am I off a little bit on this from a reporter's perspective?
- [23:30]
Roger Parloff
I mean, from my humble perspective, and that's pretty humble compared to Goldberg. I thought he and his lawyers were sort of pitch perfect on this thing. I think it was astoundingly responsible and down through the end, even where, I guess, you know, they were even claiming there was, I think, a CIA asset that they were willing to pretend was not secret and he wouldn't give that guy or woman away, so he was more responsible than them. And plus the fact that, you know that one of the tools of responding to a situation like this is going to be defamation. And that's one of the key tools they're using. And so you have to be ready for that blowback. And he was.
- [24:27]
Scott R. Anderson
Yeah, I just want to add to that. So, I mean, obviously, I know Jeff and have worked closely with the Atlantic over the years, and Shane is a close, close personal friend. The. The attacks on Jeff in this context are really quite despicable. This is not a situation in which he aggressively went after a story. This is a situation in which Mike Waltz basically connected with him on signal and then inadvertently added him to this text chain. So he was a kind of a passive participant in this. And there is somebody who knows how this happened, and it is Mike Waltz. And instead of going out on Fox News and saying, I screwed up, I added, I don't know how I Did it, or maybe I do know how I did it, but I clearly, I added Jeff Goldberg to this. He's going out, and he's implying that Jeff hacked his way on into that Signal group. Jeff is not a hacker. The Atlantic doesn't have, you know, a Tao group or something that's, you know, you know, like a skunk works underneath the Atlantic where they're hacking, you know, the national security advisors, cell phones. This is a situation in which one group of people behaved extremely responsibly. They did not race to press. They did what they needed to do to verify that the Signal chat was real. They withheld all kinds of information. They did the opposite of what Glenn Greenwald did in reporting the Snowden. This is a model of careful national security reporting. And the other side, which, by the way, is the government of the United States, all the senior national security officials of the United States are lying about it, and they're lying, including in testimony to Congress, and they're going on national television. And Roger is correct when he says defamation is a tool in the Web, in. In the arsenal. The other tools in the arsenal are also forms of lying. And so I think it's important. I'm sure there are nits to pick with stuff that Jeff has done or things he said or things. But this is an example of one side behaving in an exemplary fashion and the other side, which is, by the way, the side with political power, behaving in an awful fashion. And I think because Jeff's getting a lot of attention right now, it's easy to miss how awful the administration is being in their treatment of him. But I think we should actually pause over it. I think it's, you know, they are covering up really bad behavior by lying about a journalist who uncovered it kind of in a passive fashion and did everything in his power to minimize the damage to national security of their errors.
- [27:40]
Benjamin Wittes
I completely agree with that. And the point part of this that really bounced back me is that this has become such an. And just a instinct for them, such a reflex, every time they take any sort of criticism in the media to immediately jump on them as a, you know, Trump hating or lying or otherwise kind of despicable person, no matter who it is in the media. It just begins to be a little bit of a crying wolf situation in my mind, I think, because in a case like this, where it's just so clear they've done something wrong, that even House Republicans, not the contingent of the population most likely to stand up to Donald Trump, when you have A number of House Republicans saying, hey guys, just take this one, accept responsibility and let's move on and end the conversation. That's not a great sign of your strategy, but they are so dug in on it. It's really quite extraordinary. And I'll say one aspect that I want to dig into which this transitions well to is that they even got into a really heated exchange at the Wall Street Journal editorial board this morning. I don't know if you guys saw this on the White House where the editorial board wrote a, a very sensible, in my mind op ed kind of saying this was bad, maybe not as bad as some people are making it out to be, but it was bad. Take responsibility. But they made this point, which was not the main target of the inquiry but I think is worth taking out. Is that the real thing that gets at this, that's going to be remembered from this conversation is what Europeans take away about how this administration is viewing US Allies. It's kind of a unique take for the Wall Street Journal editorial board, usually a fairly big Trump boosting body to take, which was not entirely it was critical. It was a very sensible sort of like balanced approach, which is not always their tack on these things to say the least. But it can make this point saying, look, the real takeaway from this is that we see this real unvarnished vision of what the actual thinking is, is inside the White House and it's a little immature, it's a little unprofessional. You know, people are still learning what they're doing. It's a little juvenile. But in particular, you have this very unprofessional, unvarnished view where Hegseth and J.D. vance were very, very critical of European allies. And not only that, the actual decision point that President Trump appears to have made, and at least by my reading, it appears to have originated mostly with him, although maybe prompting of kind of other advisors. And this is as communicated by Stephen Miller, who kind of served as this correctant or verifier for the people in this chat about what Trump decided at a National Security Council meeting, said, essentially we are going to do this and then we're going to take the cost and we're going to make Europe and maybe Egypt pay for it, which is pretty exceptional. Ben, I'd be curious about your thoughts about this. I mean, the big interesting part of this, the thing that makes me want to go on signal and change my name to just SA in case there's any SAS in the National Security Council I can get added to, is that it really gives you this unvarnished interior view of how this administration is thinking about. About this stuff, at least in this one high profile incident, at least this one line of communication. And it was kind of interesting and to some extent troubling stuff out of there, I think. What were your big takeaways from that?
- [30:34]
Scott R. Anderson
Yeah, I completely agree. I mean, I do think it is interesting that their internal conversation is pretty similar to their external self presentation. That these are a bunch of guys who go to the Munich security conference and bitch and scream about Europe. And in their own private chats they're kind of held back by, you know, opening international shipping lanes because it might benefit Europe. And they're more invested in the Suez Canal than we are. And by the way, they're not. We're not going to be able to get them to pay for it. And it does suggest that there's this very kind of immature. Immature is generous. I mean, they sound like a bunch of, you know, teenagers kind of waxing macho. And you know, oh, it sucks that we have to do this because, you know, the Europeans won't pay us as though we normally get it reimbursed for military operations. And then, you know, they're kind of slapping each other on the back. You know, nobody hates Europe more than I do, but Jesus Christ, we have to do it, I guess, you know. Oh, okay. You know, and it really is kind of like a parody of themselves. I don't know what the Saturday Night Live writers are going to do to parody it, but it. They can't do much more than the guys did themselves. You know, if they want to include me on future tech streams, I'm totally game for that. You know, my signal number is available, but I just kind of think Jeff got really lucky on this one.
- [32:21]
Roger Parloff
There was one detail we just learned this morning, and maybe I'm just being a snowflake about this, but one of the targets, it says he's going into a building to see his girlfriend. And then they, oh, we got the building and 53 are dead. And that seemed some heavy duty stuff.
- [32:46]
Scott R. Anderson
Yeah. So first of all, there's no doubt that the operation was heavy duty stuff. But the, the number 53 dead comes from the Yemeni Health Ministry, which is a Houthi controlled outfit. I don't know how reliable that is. And of the 53, I have no idea how many of them are legit targets and how many of them would be considered collateral deaths. You know, the individual that they were targeting was the, I believe from. Was the kind of chief missile guy for the Houthis. So clearly a lawful target. You know, when we go after high value targets, we do take out buildings that involve, you know, killing civilians sometimes. And so, you know, that's the same, really, the same issue that the Israelis deal with in Gaza. And I don't think, you know, one of the reasons the last administration was hesitant about this sort of thing is that it's pretty hard to get high up the chain without having a fairly high degree of civilian deaths. And so there's a lot that didn't happen as a result of that. Is that a fair summary, Scott?
- [34:13]
Benjamin Wittes
Yeah, you know, it's really hard to know without looking at what DoD knows, intelligence community knows about this stuff generally. I would say the way you do people plan these strikes is that they have a target, they observe patterns of behavior because they, you know, need some lead time to know where this person is going to be. And then they kind of set the trap, set the stage, target it around an area where they're going to be, and then they take the attack of opportunity when it comes up. Right. In this case, that's why, not necessarily surprising, this would be the girlfriend's house, if that's what it was, why he was visiting this residence. It's like a place he returned to frequently and so provide an opportunity to target it. So that part itself is not disconcerting. If they had attacked the girlfriend's house without this person, this combatant being there, that would be a bigger, much bigger legal question. Clearly a violation of the law of armed conflict. I think because the person's there, it's less clear. Then it becomes a question of, well, what is the collateral damage versus individual damage? And we have to wait on the final count, have to know what it is. I will say I don't know if this is, like, clearly beyond the pale, although we have seen the Biden administration, for example, use much more targeted attacks. Think of how they killed Ayman Al Zawahiri with a drone strike, right? Like on an external porch, damaged a building, I believe maybe killed one other person. But very much fairly targeted action. That doesn't mean it's always an option. It might not be an option. A case like this. We do know, Pete Higseth, this administration have very much said, like, we're lowering the threshold of restraints that people have on military operations that includes collateral damage assessments. And so it's possible this was a sort of action that had a higher civilian death toll than the Biden administration or others might have engaged in that's that's a statement of the policy that the administration has said they want to move towards. Maybe DOD hasn't moved there yet. Maybe the working level people who actually planned this haven't gotten there yet. I kind of doubt it's proliferated down, but I don't think we 100% know and frankly we're not going to know until there's some sort of after action report and even then, only if it leaks to the public. One last aspect of this before we move on. A really interesting part of this that jumped out at me is the J.D. vance Trump relationship, because this chat started essentially where they're describing this decision to take this action that was reached at a principals level PC Principal Committee meeting, which is kind of like the highest level of the National Security Council. There's some confusion a little bit over what's being decided. I will say in my experience, I don't think that's necessarily unusual. Walt says an SOC is coming. That's a statements of conclusion, which is like the kind of document that memorializes the decisions made, but that can take a few days for whatever. It just takes time to write that things up and to clarify and get it cleared by people. So sometimes there is confusion, like after a major meeting about what exactly has been decided, particularly around certain details and parameters. So I don't know if I found that that weird. I know some people online and elsewhere were saying they thought that was strange, but I don't find it necessarily surprising, especially because Trump is a person who doesn't speak with perfect clarity to say the least. But Vance comes in and says outright, I think we're making a mistake on this and we should wait a month to do X, Y and Z. On a thread where Donald Trump is not present, other people weigh in and say, well, if you want to do that, raise it with the President. We think we have our orders to go forward with this now, but we could wait a month. It wouldn't hurt anything. Waltz then invites in Stephen Miller. After a little bit of exchange, after inviting in Stephen Miller, Vance says, okay, well Pete Hegseth, if you think we should go ahead with this now, let's do it. And Hegseth says, yeah, I hate the Europeans too. They're freewheelers. But this is a good opportune moment to move forward with it if that's what the President wants. And Miller says, my understanding from the decision from the President was that we do this now for freedom of navigation and then we make the Europeans and again Egypt. Miller mentioned specifically pay for this after the fact. Query how they're going to do that. Exactly. And how that's going to be received by Europeans.
- [37:49]
Scott R. Anderson
The same way that Mexico paid for the wall.
- [37:52]
Benjamin Wittes
Yeah, exactly. But it could become a major diplomatic sticking point with Europeans and others moving forward in regard to this action or future maintenance of Freedom of navigation there and also parts other corners of the world. But Ben, let me ask you and Roger, I'd welcome your thoughts on this too. Does this sound like you as a little bit weird around the dynamics of this internal decision making process like, like in another administration? I don't think it'd be weird for senior administration officials saying hey guys, let's think about this a little more, let's talk about this. But here it's happening after a Principals Committee meeting where presumably Vance and the other people involved had a moment to decide this. Maybe Vance wasn't there for some reason, maybe that's part of the problem. But they had opportunities to weigh in and discuss this during the decision there. Instead we see Vance coming in after the fact and pushing and basically lobbying Cabinet members to try and reach a different conclusion and circle back with the President. He specifically says, I don't think the president realizes how inconsistent what he's doing now is on talking points on Europe. I think that's really interesting from a lot of points, both because it suggests Vance really cares more about the current posture towards Europe, which he sees as pushing more responsibility onto them, I think is the main point. And he is the real driver behind that, at least in this conversation. And that he's got this weird going around the president sort of angle. He's lobbying the Cabinet to try and come back to the President as a view as opposed to engaging with him directly. It doesn't appear like he followed up with the Secretary of Defense's invitation to raise these concerns with Trump directly. Instead he kind of gave up the issue and said if you think we should do it, Secretary Hegseth, it's up to you. Am I wrong? This strikes me as a very weird dynamic and is maybe reflecting both some of the weird inherent little lack of cohesion in the Trump team and also the weird role that Vance himself is playing. Ben, Roger, do I have you guys have a reaction to this? I don't know why it really jumped out at me as actually some of the most interesting part of this is some of their weird dynamics they had amongst each other.
- [39:38]
Roger Parloff
I'll leave this to Ben, except that this was the exchange I alluded to earlier in which I was getting vibes from Vance of a sort of some condescension as well as dissension from Trump, and that he was now that Trump wasn't on the line, he would just sort of he could speak freely. But beyond that, I don't really feel I have any expertise.
- [40:04]
Scott R. Anderson
All right. I will just say, first of all, I think a lot of administrations have figures who relitigate everything until the moment that they can't do it anymore, because, you know, in this case, quite literally, the bombs have started dropping. And secondly, I was actually a little bit relieved to see Vance taking roughly the same position in private that he's taking in public. That was not an intuitive thing to me. I've thought of him as a figure of infinite cynicism, and this suggests that the cynicism may be something less than infinite. And then finally, I will say that, you know, the fact that Trump does seem to be deeply influenced by the last person he talks to suggests to me that if there's a principles committee at which you decide to do X and then you want to do not X, or you want to do X in a month and get a little bit of Europe bashing in in the meantime, maybe keeping on fighting is the right play. So I don't really want to second guess J.D. vance on this. He clearly knows how to manipulate Trump better than I do, and so I'm going to defer to him in an area of his expertise.
- [41:20]
Benjamin Wittes
Fair enough. Fair enough. Well, for our second topic, let us go to another area of heated debate and internal dissent, but this time between the branches in the judiciary, as we are seeing a heated legal fight, perhaps I think the most contentious fight of the many, many dozens of legal fights we are following here at Lawfare around the Trump administration's legal actions. This one relating to a number of individuals who were removed from the United States, well, set to be removed from the United States on the basis that they were members of TDA, a Venezuelan gang. This resulted in a very quick TRO issued by Judge Boasberg in the D.C. district Court, federal court here on the basis of some very quick legal action by people representing this group saying the Alien Enemies act that the government was trying to rely on does not apply here, does not provide legal basis for removing these people. And we said, we ended up with this debate saying where a number of plains appeared to go forward, although the five named plaintiffs in the case, there were five plaintiffs seeking to qualify a class. And so while the five named plaintiffs weren't actually removed, other planes that were in the air at the time Boasberg gave at an order saying nobody else should be moved out of the country on the basis of this proclamation went forward. We're still waiting for some details about that question about the timing and sequence to figure out what's being resolved. But we may not get them because now we see the Trump administration has invoked state secrets privilege to try and avoid having to share a lot of the details around this decision to move forward with these removals on the basis of the Alien Enemies Act. Roger, you've been following this case very closely. You also listened in on arguments that we heard earlier this week in the D.C. circuit because the Trump administration has also appealed. So we're seeing arguments happening kind of simultaneously at two levels, at the appellate level as well as at the district court level, both of which had action this week. Bring us up to speed a little bit about where we are on this case and what jumps out to you about it.
- [43:16]
Roger Parloff
Yeah, as you said, this was a very frantic thing from the start. It was filed in the wee hours of March 15th because on a Saturday, the ACLU and Democracy Forward lawyers had gotten this information that a proclamation would be issued. It hadn't issued yet. They were getting leaks from their clients, were telling them they were being sent to the border. So it was all very frantic. And so there was an emergency order around midday Saturday before the proclamation had come out to make sure that these five individuals were not. Because the judge realized once they're in El Salvador, once they're in Venezuela, of course, at that time, they weren't sure exactly where they were going to be. He had no jurisdiction. I mean, he had no enforcement power once they're in a foreign country, released in a foreign country. So he issued this very brief, it's a minute order staying it with respect to the five. He held a quick hearing at 5pm and that's when this there was an oral back and forth about turning around the planes if they had left. And then after that, there's a written order, also a minute order. And because it was on this frame fast framework, he also then gave the government a chance to move, to vacate his own order. And he would hear that the following Friday on briefs. His ruling on that came out Monday. It's 37 pages. It's more reasoned. But meanwhile, they had instantly appealed those minute orders and there isn't much to look at with those minute orders. And those went up to the D.C. circuit. That was argued Monday, also a few hours after his 37 page ruling came out. And so far as we know, the 37 page ruling will play no role, which is not a great thing, because it does, you know, it's more reason than what they're looking at. The panel was a fairly conservative panel, as D.C. circuit panels go. It was two Republican appointees and one Democrat.
- [45:49]
Benjamin Wittes
Henderson, Walker and Millett, I think, right?
- [45:52]
Roger Parloff
That's right. Patricia Millet is Obama. Justin Walker is Trump. Karen Lacraft henderson is George H.W. bush, and she was appointed to the district court by Reagan. It was pretty clear from the questioning that Millett was going to vote to keep the TRO in effect. This is only about a stay pending appeal. In fact, at one point she said Nazis got better treatment under the Alien Enemies Act. They had hearing boards before they were removed. I'll talk a little more about that in a moment. Walker, it was pretty clear, was going to either give the stay or vote to dissolve the stay. He seemed to think, and there is, this was a big argument that the government was pushing, is that assuming there's any review, the government's big position is there's no review. This is a wartime measure. National security, foreign affairs, executive power. It's unreviewable. It's non justiciable is one of the words. It's a political question. So you just have no jurisdiction to second guess him. But if there is, it needs to be done in a habeas corpus context. And that is a proceeding that is ordinarily has to be brought where the detainees are confined. And as of the morning of March 15, they were confined in Texas, Southern District of Texas. And obviously Texas is in the fifth Circuit. And the Court of Appeals for the fifth Circuit is probably the most conservative in the country, probably more conservative than Supreme Court. I would say initially, at that very first hearing, I would say Boasberg, like most of us, were wondering, how can this even come within the Alien Enemies Act? The proclamation invokes the Alien Enemies Act. And the Alien Enemies act, which has been used only previously during declared wars, does by its terms permit its use. Also, when there is an invasion or an incursion by a foreign government or nation, Foreign nation or government. And so the question is, how could Tren de Aragua, a criminal gang, be a foreign nation or government? And also, is immigration even illegal immigration over years, is that really an invasion within the meaning of the act? Now that people have had a chance to look at the law, there is a fair amount of law saying that there is a lot that is non justiciable that is unreviewable about this. I think Boasberg doesn't really want to go head on and say Trent Aragua is not a foreign government, even though the President says it is. What he can do and what is very clear in the case law is that there is judicial review over whether you are an alien enemy. And this is what Millet was getting at. During World War II, even Nazis went before a board, it was called the Alien Enemies Hearing Board. And they got individualized hearings to make sure are you really a German national? And there was actually more to it is, are you dangerous? And so on. Did you match the invocation that the President had made at that point? And nothing at all like that was offered here. In fact, there's a lot. But what it looks like this proclamation was signed on March 14 and kept secret. So it was signed Friday. We assume it was signed by Trump. Now, he said he didn't. And then later his spokespeople have said no, he did, he did. Assuming he signed it. He signed it the 14th. It's kept secret. These people were being, according to the plaintiffs, they were yanked from wherever they were all over the country, sent to Texas. They were prevented from going to their ordinary asylum hearings under ordinary immigration deportation proceedings. And it looks for all the world like the hope was that they would announce it an hour before the planes went and there wouldn't be time for the plaintiff's lawyers to go for a tro. Maybe they wouldn't even there's some evidence they were planning to send them before they even announced it. That would be pretty obviously illegal because the Alien Enemies act says it has to be a public proclamation. But anyway, I think that's where it stands. We're also waiting for a ruling on whether we aren't very close to it. But Judge Boasberg is going to make a ruling on whether there was non compliance with his oral order on March 15, which was pretty unambiguous. It was Mr. Anson, or ANSIGN as he might pronounce it. The first point is that you shall inform your clients of this immediately and that any plane containing these folks that is going to take off or is in the air needs to be returned to the United States. But those people need to be returned to the United States. However that's accomplished, whether turning around a plane or not embarking anyone on the plane or those people covered by this on the plane, I leave to you. But this is something that you need to make sure is complied with immediately. There's pretty good reporting on where the planes were. They left after the hearing began, but before this oral ruling. They were probably they were almost certainly outside US Airspace, as in if that made any difference. And then there was a third plane that did leave after the written ruling came out. Even the government has said that those people were all they weren't deported based on the Alien Enemies Act. They had conventional final orders under Title 8 under Immigration Proceedings. There's new evidence that that might not be true, but that's where that stands.
- [52:49]
Scott R. Anderson
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- [55:29]
Benjamin Wittes
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Scott R. Anderson
This is just how my voice sounds.
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Benjamin Wittes
Just say it like you mean it.
- [55:47]
Roger Parloff
Okay.
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Scott R. Anderson
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Benjamin Wittes
Yep, many Warby Parker locations also offer eye exams. So the next time you need glasses.
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Scott R. Anderson
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- [56:30]
Benjamin Wittes
Here from Mint Mobile with a message for everyone Paying Big Wireless way too much. Please, for the love of everything good in this world, stop with Mint. You can get premium wireless for just $15 a month. Of course, if you enjoy overpaying. No judgments. But that's weird. Okay, one judgment anyway. Give it a try@mintmobile.com Switch upfront payment of $45 for three month plan equivalent to $15 per month required Intro rate first three months only, then full price plan options available, taxes and fees extra. So I'm curious of your thoughts, Ben, about how you've been struck by this case. My instinct from this, having kind of read into it now that I've had a few days to process it, is this strikes me as exactly the sort of incredibly bad lawyering that you get from very bad solo decision making in the executive branch and very motivated logic. The only way I can make sense of this is that you have this statute which has very broadly worded language in it, including a lot of language about delegation to the President, about determining the conditions of confinement, and all of these other questions about how these people are being handled. It doesn't expressly say anything about a process for determining what these people are going to be like. Although if you are anyone who's dealt with a lot of these statutes or rules dating back to World War II, you would know that there were there are going to be due process requirements around it in terms of invoking anything like this. We saw it come up in the sanctions context. Twea, which is one of the broadest, most discretionary laws the President has ever had, still had to have processes for determining whether somebody's assets were in fact enemy assets or not. Certainly on real people, there'd be even higher due process sort of requirements. And you end up in this position where the executive branch is relying on this authority in a way that undermines its very use. Bear in mind, this is a law that only allows you to remove the nationals of a country that is implementing an invasion. So they have to either argue that Venezuela is responsible for what TDA is doing, even if you assume that they can credibly claim this is a invasion by the. Or was it adverse incursion, predatory incursion, or invasion by tda. You have to either assume TDA is acting at the direction of the Venezuelan government, and we saw reports of an intelligence report that leaked indicating that there were no such ties between the Venezuelan government and TDA in the eyes of the intelligence community at least, or you have to assert that TDA is its own country, which appears to be the direction the Trump administration is moving in, relying on the President's exclusive recognition power, as the Supreme Court confirmed 10 years ago in Zavitaski v. Kerry. But still a bit of a heavy lift. I think this strains the credibility even of that. It is a crazy position. What do you get out of it? At most, you sneak two or three planes across the border. Maybe you get this symbolic in the camp, kind of like stick it to the court, stick it to whoever sort of move. But from a policy perspective, you actually don't get much out of this. And notably, every one of these people, if they're correct, these were members of tda. They were already removable by virtue of TDA, having been designated an FTO just a few days earlier. Earlier, a foreign terrorist organization. That means members of that FTO can be removed. You just have to go through the normal process of removing them, which is what they tried to skip. Am I off on this, Ben? Like, what is the basis for them even trying this? And isn't the payoff just incredibly low, given the really, really, in my mind, questionable legal basis at best for what they're pursuing it under?
- [59:56]
Scott R. Anderson
Scott, I think you are thinking like a sane person consulting a lawyer. And I think that's the wrong point of view to look at this from. I think the right point of view to look at this from is from. And I don't mean this in a snarky way. I mean it in a, it's going to sound snarky, but I mean it literally. I, I think the right way to look at this is from the point of view of a narcissist at a gym with a big mirror. You know, this is a situation where the president's authority to get rid of people he doesn't want in the country, particularly who were here illegally or associated with Venezuelan gangs, is very broad. And as you say, if you're a sane person pursuing a rational policy objective, which is how quickly can we get rid of how many Venezuelan gang members? And by the way, these people are already detained, right. And they're already in some part of removal proceedings, then yeah, you would analyze it exactly the way you just did. There's really no marginal advantage to this. You get mired in years of litigation and maybe you get to establish the precedent that the, because I said so and I'm the damn president principle is really all that matters here. But maybe instead you establish the precedent that actually there's going to be some due process. And by the way, the, the, the Venezuelan hairdresser who's gay and came here because he was trying to escape gang violence doesn't get, you don't get to. By presidential dikt. Wrap him up with the Venezuelan gang people. Right. All right. But now look at it from the point of view of the narcissist in the gym with, you know, a very tight shirt and a big mirror, which is, it's not enough to show that you can get rid of as many Venezuelan gang. You have to be seen doing it yourself. And there's this law that says, and it was, by the way, it was passed in the John Adams administration and it was used by all our badass presidents to get rid of foreigners during our world wars. And you know, are you less of a man than, than you know, than Roosevelt? Are you less of a man than Woodrow Wilson? Are you the guy who's going to stand there in the gym looking at this and not use the Alien Enemies Act? Scott Anderson. And are you going to let some, some namby pamby lawyer tell you that, you know, to calm down, it'll go much better if you do this the regular way? And that's what's going on here. It has nothing to do with the rational pursuit of policy objective. It has everything to do with to be seen wanting to be seen to be the guy who's tougher than and you know, who's not going to get out flanked by these, that by Some president in a wheelchair 70 years ago. We're doing, we're using all the tools. And by the way, if a few people who aren't gang members get wrapped up in it, well, that just shows that we're using all the tools and we're being aggressive. A lot of it has to do with how you're seeing yourself when you do this stuff. And you know Adam Serwer's line, the cruelty is the point. It actually doesn't quite capture it because yes, the cruelty is the point, but you have to be seen to be doing the cruelty yourself.
- [64:01]
Benjamin Wittes
Yeah. So I think that's a great read on it and makes the only real way to make sense of this. And I'm wondering what that means for the last bit. Big part of this that we've seen pop up in the last few days, which is the state secrets privilege invocation. Okay.
- [64:15]
Scott R. Anderson
This is where they're going to lose.
- [64:16]
Benjamin Wittes
I think they're going to lose on the other part, for the record, I'm quite confident of it. But here they're definitely going to lose.
- [64:20]
Scott R. Anderson
They may well lose on the other part too. But Zivitovsky does give them some arguments. There is no good argument that you can invoke the state secrets privilege over conceitedly non classified material and they cannot stand in front of a court and say this is material that is germane to a state secret that we would actually classify. To go back to our earlier conversation about classified information, what is an unclassified state secret? I don't even know what that means. Yeah, it's like how to break in and steal the Hope Diamond. That's not classified, but it's not. I don't know what a non classified state secret is. They're speaking in stupid tautologies on this point.
- [65:15]
Benjamin Wittes
Well, so I think that's right. And the point that I am beguiled by. Although Roger, maybe there is more of this in oral argument or elsewhere that you've picked up on. I think you've done a deeper scrub of the filings than I have. I think there's actually only the government filing on this so far. I don't think we have anything else, is that they essentially say this relates to communications with the foreign government and that's their main hook for asserting that state secrets privilege and notably communications with the foreign government can involve fgi that is like a presumptive basis for foreign government information. In government acronyms talk, that's like a presumptive basis for some classification, although usually like a lower level classification. But it doesn't mean it was necessarily applied here. Besides that, though, it's hard to think of what foreign government on earth they're talking about. If they're talking about we had negotiation with Venezuela or tda, if you're going to treat them as a foreign government for the purpose of the Alien Enemies act, then it's really hard to argue. I think that they're perpetrating the invasion. If you somehow got them to agree to take these people back, which we know Venezuela did start doing, although not these people, but it did different plane of people last week. But if it's the negotiation with like the government of El Salvador, which seems like the only other plausible category who's holding these people, it doesn't seem like why that discussion would be relevant at all to determining whether these people fall within the scope of the Alien Enemies act. Because El Salvador wouldn't have any knowledge or basis of that. So what would the possible basis for invoking this? The basis for it is just so limited. And notably, you know, they don't seem to be arguing for the dismissal of this case. That is something thing sometimes people do with certain state secrets cases is the kind of tottenham, whatever they call dismissal or totten exclusion, that's not what they're invoking here, as far as I can tell. That's good like that. This does not even come close to approaching a case like this. It's really just a privilege for refusing to disclose information. But that privilege is not something that it's judicially created. Judges do prod around the basis of it and usually it's in a debate with another party. Here it's kind of like with the judge trying to clarify what's the right scope of the invocation. And courts do trim it. Sometimes courts even demand presentation of the classified information in camera, which would be particularly weird here because the judge is the one who basically wants this information and has been requesting it. Right. Most of this seems to be in response to the judges show cause orders. So am I wrong on that, Roger? Like, this just seems like such a weird invocation of state secrets. Do we have a sense about the trajectory where it's headed on?
- [67:37]
Roger Parloff
No. There are three possible countries. The planes land in Honduras, then they go to El Salvador, there's Venezuela. So maybe there are negotiations. The really hard thing to see is what's sensitive here. The reason that the media has been able to track the flights is that the flight information is public. The planes landed in El Salvador. You know, the president of El Salvador made his own video film with music and everything. And it shows at least two of the tail fins with the numbers of the flight of the, you know, of the airplanes. Maybe you can make out the third with the additional augmentation devices and the questions that are being asked. I mean, frankly, I think this might not make a lot of difference because the government has said we don't confirm, but we don't contest the press reporting. And so I think almost all of his questions have been answered. One was he wanted a declaration about the third flight. They provided it. I think that declaration might be false, but they provided it a sworn declaration about when the proclamation was issued and when it was made public. We know it was made public at 3.53pm on Saturday the 15th. We don't know when it was signed. That's an interesting open question. We don't know who signed it, which is an interesting open question. Then they want the best estimate of the number of individuals subject to the proclamation. I think they provided that basically the government's position on whether it will provide answers to the government's questions. And so that's where we are. So it's really just the flight information and I don't really think that's pertinent to the compliance issue. It's almost a given. I don't think it's crucial to it. We know they defied the oral order and there's a possibility they did not defy the written order. Depending on how you interpret that.
- [70:05]
Benjamin Wittes
There are just such a mess of insane legal issues in this one case. I think it single handedly could launch an army of student law review notes. If you are out there and a law student take a look at this case, you could take any slice of it and write a whole article off of the crazy arguments being advanced and questions being raised and we'll see how the courts deal with them. I am not super optimistic about any of them on the government's behalf, but we'll see where they land. Roger?
- [70:28]
Roger Parloff
Yeah, I think that the interesting questions you would like to know the answer to, which is whether that, you know, whether you can have an Alien Enemies act proclamation about a criminal gang that isn't a really a country. I don't think we're going to get. I suspect we might not get an answer to that. I think that where Boasberg wants to move is to the safest ground, which is that you're certainly entitled to an individualized hearing on. Are you a member of Trend Aragua? And the terrifying thing is that a lot of these people probably weren't and I say terrifying because the evidence begins to come in about what that prison is in El Salvador and what it's like that a lot of people. It's not clear that anyone has ever been released from there. And a lot of people have died there and there's evidence that maybe they have died violently. It's really scary stuff.
- [71:31]
Benjamin Wittes
Yeah, I tend to agree. I mean, and the reason why I think that will obviate the case is because once you get to the point where you are entitled to give people process, the ability to remove them starts looking a lot like what you could have done. Anyway, once you designate the FTO through conventional removal proceedings because you got to provide individualized hearing. That's what removal proceedings do, kind of a specialized way, but it would check the box. And then there's just no reason to try and do this alternative remedy, underscoring how pointless and pretty cruel for those people caught up in the midst of it. It really is. Well, talking about pointless and cruel, let us go to our third topic with our remaining time. We have seen some pointless and cruel actions targeting, let's be honest, one of the least sympathetic quadrants of American society in the last few weeks, and that is major white shoe law firms, which many of my friends work out. Many of our friends here at lawfare work at, but aren't the sort of people you think of being typically the subject of underprivileged, vulnerable populations over the.
- [72:27]
Scott R. Anderson
Major law firms in Wall Washington. You just walk by the buildings and you hear them singing We Shall Overcome.
- [72:37]
Benjamin Wittes
If only it were that unified.
- [72:39]
Scott R. Anderson
Then the chorus of Wilmer Hale and Arnold and Porter and, you know, they're all Covington and Burling. The oppressed of the earth are getting together and rising up.
- [72:56]
Benjamin Wittes
It is really remarkable. So we've seen now major sanctions directly imposed by name on I think four law firms specifically, right. Paul Weiss, Covington and Burling, Perkins Coie, and then Jenner and Block just happened, I think in the last 24 hours here. On top of that, we see a number of law firms being listed in an EEOC sort of violation over DEI stuff or not violation investigation, where it's kind of similar consequences for those foreign named firms. Though the White House has essentially said we don't want members of this firm being let into federal buildings which may or may not include courthouses. I doubt that's constitutional, but who the heck knows? We don't want them having security clearances. We don't want them dealing. Anybody who is a government contractor or grantee dealing with these Law firms. So pretty aggressive kind of boycott being imposed on these law firms firms by the White House. Worth noting, a very questionable legal basis to do something that discriminatory. Especially because in many cases they are expressly tying these actions to the fact that these law firms in many cases were associated with people involved with the criminal prosecution of President Trump when he was out of office. In many cases because they employed the people involved before they got involved in those criminal prosecutions. But by virtue of kind of prior association, somehow they have become responsible. Possible. It's extraordinarily petty, extraordinarily arbitrary, extraordinary all around. But it hasn't quite triggered the sort of broad industry response you might hope for. Instead, we saw the first of these firms really capitulate this week, and that's Paul Weiss, where Brad Karp, the chairman, a lifelong Paul Weiss associate, I learned from his Wikipedia entry, and now partner and now of course, leader of the firm, went to the White House, had some negotiations and agreed to a statement of principles that is worded somewhat neutrally, although depending on what your perspective is reading it, you can read into it lots of different things about what Paul Weiss is saying about the actions of their firm, of other people associated with their firm, but nonetheless kind of commits itself to a certain principles and to spending a certain amount of pro bono money in certain categories of broad conduct, including things related to the justice system and access to justice and immigration, things like that. But kind of slap your hand in a lot of ways in terms of actual sanctions, but of big symbolic importance because it is essentially reads like a concession that Paul Weiss has done something wrong. And then of course, we have the White House issue the same statement and then also say, and Paul Weiss criticized the behavior of this former partners of theirs that went on to be involved with the New York prosecution. Does not look like Paul Weiss actually did that, at least not in the written statement that was released, but maybe serve some verbal exchange with Karp. This really throws a bit of a wrench into the efforts to push back against this. We know Perkins Coie, being represented by Williamson Connolly, another big law firm, is actively engaged in suing and challenging these in the courts right now as we speak. I don't know if we know any of the other firms are pursuing legal action as of yet. I don't think they are. Covington got kind of a lower level of sanctions, and I haven't heard anything about statistics pursuing legal action. Jenner again, just, just got quote, unquote designated so we'll find out what they're doing. In a few days. But a lot of law firms seem to have an interest in pushing back on this. But Brad Karp, in his letter to people at his firm, which has now since gone public, said the reason we did this is because we knew the government could wreck us. And we went and asked other big law firms, hey, come and join us in an effort to push back against this. And they essentially said, no. Roger, you have worked in the law firm, I should say, which is good from a perspective. I know you've been following this case closely. What is your sense about what's driving the sort of behavior of these law firms around this? That we're not seeing a bigger, broader pushback. And I'd be kind of curious where you see whether you think those conditions are. It's a short term reaction, or whether we're unlikely to see any sort of pushback even further down the road.
- [76:46]
Roger Parloff
Yeah. And I was a summer associate at Paul Weiss, so that's a long time ago. A couple summers, in fact. Just personally, I found this news backbreaking, I would say maybe the most emotionally backbreaking since the immunity ruling itself from the Supreme Court. Shocking part of this is that you might think, well, these are very wealthy people. Why should we care? You should care because their pro bono work is vital to the country, and their pro bono work should be vital right now. And one of the striking things when you look at these 80 or 90 lawsuits now challenging the executive orders and other crazy actions going on, is that for the most part, they're being brought by nonprofits, which is great, but I don't see how they can do it. And in fact, I wonder if there's getting secret help. But you know, ordinarily, Paul Weiss, in its history, just did invaluable work for the Legal Defense Fund, which NAACP Legal Defense Fund, at that point, the ACLU and all that. This was a very proud firm started by two Jews in 1875. It was a firm where for a long time Jews could work where other firms wouldn't let them. And this is what they do. Adlai Stevenson and Justice Goldberg and Lyons of the Bar. And what I think happened over time, and I think Karp described it accurately, I think what you're seeing is that firms that are still, they were considered a litigation firm. That was their prime. But over time, I think their money is coming largely from the corporate side. And I think their concern was that even if they won a contested TRO and preliminary injunction, the way Perkins has won a tro, to be on the wrong side of this administration means these are people that are committing what used to be considered impeachable offenses every hour. If you're a merger, if you do M and A, then you need to get government approval, DOJ approval for mergers. And are they really going to play it straight with you when they are saying that you are an evil firm, that you are a danger to national security? And more importantly, what do your clients think? Do they think you can get them the merger approval to do an IPO on the stock exchange? You need to get SEC approval. If you're negotiating with with the DOJ about whether you should be indicted, do you want Paul Weiss to rep. Or a firm that's in their good graces? So it's the unwritten things that they were most worried about. So it's an incredible predicament, but it affects all of it. It's not just rich people that are getting impacted. It's ruining the country. It's ruining the rule of law. It's a huge deal. I can't underestimate it. And just one slight thing, Scott mentioned some of the provisions, the onerousness that you can't enter the buildings. But there's also, it's not just that you can't get government, that the firm can't get government contracts, it's that their clients can't get government contracts. Also that people that worked at the firm won't be hired subsequently by this administration for anything. You know, Perkins Coie said It works with 90 federal agencies. You're talking about the U.S. patent Office, the Copyright Office. It's just overwhelming. It will crush them. And it's root and branch unconstitutional. First Amendment, free expression, free association, right to petition the government for redress of grievances, Fifth Amendment due process, Sixth Amendment, right to counsel. There's separation of powers issue. The first section is always a defamatory section that says the firm is. I think it said about Perkins that it was something like dangerous. And so anyway, I just can't.
- [81:44]
Benjamin Wittes
It's a really remarkable set of actions. I mean, I cannot, frankly, I would never have guessed January 19th that something this brazen is something that would have come out of this administration. It was not an administration I had super high hopes for in a lot of regards. But this is a level of something beyond anything we saw in Trump 1 and is targeting a handful of kind of vaguely unsympathetic entities. But that doesn't make it less problematic. And as you noted, pro bono work. This all flows downhill and it's something that we're Seeing already reports of a chilling effect happening in other places. I saw the Post. A few other newspapers have run articles highlighting the fact that we haven't seen big law firms involved with the whole route of legal challenges. A number of law firms are very active in them, and I think it's worth noting just because we named them earlier. Arnold Porter, WilmerHale are two law firms that are involved representing people and challenges to the Trump administration's actions. They are not among the number of other law firms that have remained relatively uninvolved, but a lot of the firms that were pretty active in those challenges during the first Trump administration and during other presidential administrations where there always are people looking to challenge governmental action, because that is part of our legal system in our society and often rely upon the availability of good pro bono legal service to represent, you know, valid claims. They're not getting the same receptivity or scale of support they had before. And that is problematic. That is hugely concerning.
- [83:03]
Scott R. Anderson
Yeah, there's another side of that same point, which is that by and large, the big firms are not hiring the people who are being fired or forced out by the administration. And so you have, you know, the message operates both in terms of what clients they will take on, but also in terms of what lawyers they will give partnerships to or take on in an employee capacity. You know, look, we should call this what it is. And it is. It is repression. We don't usually use that word to describe the United States government, but this is the government going after its political enemies. And this is a form of it in which people didn't include in their scenario planning exercises and nightmare scenarios that populated lots of magazines over the last year. Because, frankly, people didn't think of it. They didn't think, although it shows up in Measure for Measure in Shakespeare, you know, the revolution comes and they say, first, kill all the lawyers. And it's always an applause line because people don't like lawyers. But actually, the point of it in the context of Shakespeare is if you want to have a mob rule government, you got to get rid of the lawyers. And that's actually what they're doing here. Look, if you look at the modality by which they are going after their enemies, it's mostly not, with one big exception that Rogers focused a lot on this, this Citibank case. It's mostly not criminal investigations. It's occasional talk of criminal investigations, mostly from this creep Ed Martin, but it's actually civil arena stuff. It's actually like, watch what happens now when we ruin your law firm. You know, we can wreck your livelihood. And that stuff turns out to be pretty effective. You know, you want to neutralize an entire sector of people who can tie you up in court over a long period of time for your policy initiatives. Just drive them out of business first. Right. And it reminds me to a certain degree of the way Vladimir Putin took on the oligarchs at the beginning of his. And what he did was he arrested and ruined the life of one of them and then used that to make it clear to the others that they better get in line, which they did. You know, that's kind of like, you know, Paul Weiss will be the sacrificial victim, although they capitulated, so maybe they won't. But, you know, then you move on to Jenner and Block and some of the others and you destroy one law firm and the others get the message.
- [86:13]
Benjamin Wittes
I can totally see that being part of the strategy. The part I find dismaying about this is the fact that Paul Weiss capitulated when it's far from clear the strategy is actually going to be successful. And the main way it gets success is through the passive avenue. The lawsuits against this able to stop it, I think will put real barriers on it in terms of the ability to practically block people from federal buildings, the visible stuff. And for the stuff below the C level, the quiet, the passive stuff, which I think is the real concern here. I'm not sure there aren't remedies for firms facing this in a lot of ways. Now, they may face some business pressure, I have no doubt about it. But if you are representing a company facing merger review, I don't know if it's a bad thing even to be able to allege, oh, no. The government's action opposing this is because of basis and bias against us. And we need additional discovery about its decision making process to be able to challenge this and to be able to demonstrate that this actual veracity, there's heightened review because all of a sudden our First Amendment, fourth Amendment, Fifth Amendment rights have been implicated. I'm sure firms would rather not have to go through that, but I'm not sure that remedy isn't available in some of these cases. Maybe if you take an extreme, extreme view of the president's like executive branch power.
- [87:27]
Scott R. Anderson
Yeah, but Scott, why would you, if you're, if you're the company going through merger review, why would you say, all right, on the one hand, we hire the, the law firm of maga, maga, MAGA and maga, let's just call it Jones Day for a minute which you know can get us through the merger review. And by the way, they have good relations with these people.
- [87:50]
Benjamin Wittes
People.
- [87:51]
Scott R. Anderson
And on the other hand, you can go with Paul Weiss and a bunch of other Jewish names Rifkin and. And you'll have to litigate the question of whether the administration is discriminating against them. Why would you. Why would you add yourself that problem? And by the way you're going to get billed for it by the hour.
- [88:14]
Benjamin Wittes
I'd not. You would add to that. You're like desiring to add to it. Like there definitely will be a business pressure element. But I'm also. So Paul Weiss should take a reputational hit from this because it's not clear what other concessions they're not going to make. If a firm is worried about having representation that will stick through them for potentially contentious process. Is Paul Weiss going to be that firm if the government tells them hey, you are representing somebody we're not interested in dealing with and we're going to exercise sanctions against you or go back and take some of these other below the board action. I think there's a lot more damage to the reputation that comes and there should be frankly to a firm that capitulates so quickly and easily to threats that are mostly for show in many cases for show that could be equally harming and should be equally harming to the business they do. That's my hope in the legal industry at least certainly to a certain point. You capitalize on you point out a firm that's not willing to stick up for its own values isn't going to be able to stick up for its clients in the face of pressure from the executive branch either. Some clients may not Perry hair that much, but a lot of clients might. Maybe this is rose colored glasses like I admit I don't envy the firm being put in this position. I don't envy Brad Karp, who might be a delightful person and done. I have no doubt he did what he thought was best for his colleagues and his firm. But the key point of all this in my view, I say this as a, you know, somebody who's only been the public sector except for one summer of his career and has always made and probably will always make less than a first year summer associate at any law firm in the company country. You make big bucks. You are the most privileged class of people to be able to stand by your values. If you aren't willing to take a hit to your pocketbook to stand by the values and the values of your industry and the thing that's made you those big bucks, then I don't know what you're operating for. I don't know. I think it's really pretty despicable. And I hope Paul Weiss lawyers know that are communicating that to Karp and to their colleagues because this is hugely damaging and it's embarrassing. And if you're going to be part of the privileged set, that comes with some responsibility, too, in the United States, and they're completely falling down on that. And I'm not sure it's even in this case clearly in their self interest to do it. I look forward to seeing their recruiting numbers and how their clients go in the next year or two after this because I suspect they're going to take a bigger hit on this. But again, maybe that's too optimistic on my part. Well, folks, that brings us to the end of our time together this week. But this would not be rational security if we did not close with some object lessons, too, for you to ponder over in the week to come. Roger, what do you have for us today?
- [90:36]
Roger Parloff
Well, I've been reading Walter Isaacson's Elon Musk book. I've been doing something that is both stupid and pretentious. I've been reading it in French, and it's because when I get through the end of the day, I'm so sick of reading maniacally court documents in English. I like to just switch language and read French. And I also want to improve my French. But there are things I think I ought to know that are written in English. And so I've begun reading them in translation as I read the Michael Lewis book about Sam Bankman Fried. And now I'm starting the Elon Musk book. One thing I find is that it's actually easier to read English language things that have translated into French than to read things that were written in French. I think it must have to do with the syntax and that it's less foreign to begin with. And so it seems easier. As far as the book itself, I was worried that, you know, it might be too hagiographic and at times maybe it is. But it's actually a very informative book. There's a ton that helps explain what we're seeing now, both in terms of his temperament and his craftiness. But I'll leave it at that.
- [92:21]
Benjamin Wittes
Wonderful. Well, for my object lesson this week, I had the opportunity this past weekend to finally watch a Complete Unknown, the Bob Dylan biopic. I don't know if I can make that my object lesson necessarily. It was an enjoyable watch. I Enjoyed it. It had really good performances. I thought Edward Norton was great. I thought the two female leads, Elle Fanning and I think Marcella Barbera, is that her name, were actually really phenomenal. Timothy Chalamet's Dylan is like a little one note. But like very impressive performing in that. That one note is a very Bob Dylan note. And the musical performances, what they all did was like really extraordinary. But the whole movie was a little strange. In particular at the Newport Folk Festival where they had this kind of like coming together. They portray folk fans as essentially like bloodthirsty soccer hooligans desperate to rush the stage and beat people to death with chairs for playing non acoustic music. It's truly wild. I do not think the kind people at the Newport Folks Folk Festival were really that heated. I know there was some yelling. I've heard the recording. But it's pretty wild, their portrayal. At one point, there's just a pile of axes that Pete Seeger almost grabs one of to hack apart the soundboard with before he stopped by his wife. I'm wondering, A, why is there a pile of axes just sitting at this folk concert? And B, is this really a Pete Seeger sort of thing to do? I don't think so. But regardless, it was an enjoyable watch. If you're looking for a movie that's kind of fun, good musical performances, I enjoyed it. I don't know if it was like the best movie of the year or anything. But it led me to dig out of my sound catalog a phenomenal album that I once had on cd and now I'm looking for on vinyl. As I don't actually have a working CD player. But I was able to find it in my old MP3s that I dug up. And that is the BOB Dylan live 66 performance. This is a Royal Albert hall concert. This is the one where actually someone actually yelled Judas when he started playing electric guitar. I think they worked that into the movie. I was told. I actually don't remember remember hearing it. But somebody said they worked it into the Folk festival performance. But that's not actually where that happened. They kind of blended a couple of these early concerts together for the movie. It is a phenomenal live recording. I love this thing. I used to blare it out of my room in college non stop. And it is just a phenomenal performance. And the energy of like going this rock set and taking these songs in a rock direction is really cool to listen to. Even if you like Dylan's folk stuff, which I do as well. So worth Checking out. I'll plug that. That live album almost at. What are we at? Almost the 60th anniversary, I guess next year. Pretty great album still. Check that out. Ben, what do you have for us this week?
- [94:41]
Scott R. Anderson
So my object lesson is this pile of axes that I have just kind of lying around in my office. No, I'm joking.
- [94:49]
Benjamin Wittes
That would not be the weirdest thing to have in your office by like a country mile. Correct.
- [94:54]
Scott R. Anderson
All right, so look, I want to talk about. And I've talked about this before, but it bothers me. Every now and then, the algorithm makes a weird judgment about me, and sometimes I can understand where it comes from and sometimes I can't. Some things about me, it gets dead on, right? Like I want. I want the camera equipment. If there's a new laser out there, I want to know that it exists. Great microphones, sound boards. I'm into that stuff. I'm a sucker for a good gadget. But then it makes these weird judgments about me that are really creepy and some of them are. Are I. I'm not going to talk about because, you know, it's a family podcast and everything. But this one the other day just really gets to me. It decided that I need a cane sword. I am able bodied. I don't need a cane. I'm only 55. I, you know, I can run, I can hike. I have no need for a cane. But then if I needed a cane, I also don't need a sword. And so all of these companies all around the world that have swords cleverly disguised in walking sticks are now bombarding me with advertising. And I have absolutely no idea what weird combination of source searches or purchases.
- [96:23]
Benjamin Wittes
Led it to the baby cannon. Baby crossbow. Baby these things, they're like, why don't he go for the full size?
- [96:29]
Scott R. Anderson
But those were the years and years ago. This is, like, started last week. And so I just want to say to everybody who's informing the algorithm, creating its training data, I don't need a sword in a cane. And by the way, if I did, I would never buy one online. I would go. I would have one made for me. So you've got me wrong on this one pile of axes to destroy Bob Dylan's soundboard. All right, maybe no cane swords.
- [97:03]
Benjamin Wittes
I will say I've been the proud owner of a sword umbrella for a better part of a decade now, and I've never regretted it.
- [97:10]
Scott R. Anderson
Have you ever had occasion to use it? No.
- [97:13]
Benjamin Wittes
No. And it's not a sword. It's not a sword in an umbrella. It's just an umbrella that looks like a sword. So it's a little bit of the opposite. It's like less use, it's less useful for both, but somehow feels good to carry around. So I don't know, but I enjoy it. So we're thinking about at least it could be an investment worth making. You never know. Well, on that note, that brings us to the end of this week's episode. But Rational Security is of course a production of Lawfare, so be sure to Visit us@lawfirmedia.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, including Escalation, a podcast about the war in Ukraine that is available in your podcatcher as we speak week. While you're at it, be sure to follow Lawfair on social 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 and other special benefits. For more information, visit lawfairmedia.org support our audio engineer and producer this week was Noam Osband of Go Rodeo and our music, as always, was performed by Sophia Yan and we are once again edited by the wonderful Jen Patcha. On behalf of my guests Ben and Roger, I am Scott R. Anderson and we will take talk to you next week. Until then, goodbye.
- [98:27]
Scott R. Anderson
If you wear glasses, you know how.
- [98:29]
Benjamin Wittes
Hard it is to find the perfect pair. But step into a Warby Parker store.
- [98:33]
Scott R. Anderson
And you'll see it doesn't have to be. Not only will you find a great selection of frames, you'll also meet helpful advisors and friendly optometrists.
- [98:40]
Benjamin Wittes
Yep, many Warby Parker locations also offer.
- [98:43]
Scott R. Anderson
Eye exams, so the next time you need glasses, sunglasses, contact lenses or a new prescription, you know where to look. To find a Warby Parker store near you or to book an eye exam.
- [98:54]
Benjamin Wittes
Head over to warbyparker.com retail.