← The Lawfare Podcast
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- [00:01]
Scott R. Anderson
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- [00:32]
Paige
This is Paige, the co host of Giggly Squad. I use Uber Eats for everything and I feel like people forget that you can truly order anything, especially living in New York City. It's why I love it. You can get Chinese food at any time of night, but it's not just for food. I order from CVS all the time. I'm always ordering from the grocery store and a friend stops over. I have to order champagne. I also have this thing that whenever I travel, if I'm ever in a hotel room, I never feel like I'm missing something because I'll just Uber Eats it. The amount of times I've had to Uber eats hair items like hairspray, deodorant, you name it, I've ordered it on Uber Eats. You can get grocery alcohol everyday essentials in addition to restaurants and food you love. So in other words, get almost every anything with Uber Eats. Order now for alcohol you must be legal drinking age. Please enjoy responsibly. Product availability varies by region. See app for details. This summer Instacart is bringing back your favorites from 1999 with prices from 1999. That means 90s prices on juice pouches that ought to be respected, 90s prices on box Mac and cheese and 90s prices on ham, cheese and cracker lunches. Enjoy all those throwbacks and more at throwback prices only through Instacart. $4.72 maximum discount per $10 of eligible items. Limit one offer per order. Expires September 5 while supplies last Discount based on CPI comparison.
- [02:09]
Benjamin Wittes
So Ben, we spent the last week getting up close and personal photos from you sent to the office slack next to some very large mammals with very sharp horns. I'm pleased to report you made it back to the office from your vacation without any visible wounds or injuries or trample marks. You know I'm impressed.
- [02:27]
Scott R. Anderson
I would just like to say that the appearance of proximity can be deceptive with appropriate camera equipment and that as you should not approach bison, moose, elk or pronghorns or bears. I did not either. Whatever pictures might suggest otherwise.
- [02:49]
Ashley Deeks
Well, I haven't seen the pictures. So what were you sending?
- [02:53]
Scott R. Anderson
So we were in the Tetons in Wyoming, which are truly majestic and the wildlife is astonishing. The Opportunities for megafauna photography are amazing, particularly if you happen to travel with a 400 millimeter lens. So I was sending large moose pictures back to the crew, as well as some bear pictures. We had a number of encounters, including with an animal that I didn't previously know existed, which is the pronghorn, which turns out to be the second fastest land mammal in the world, behind Scott Anderson.
- [03:42]
Benjamin Wittes
Yeah, just when I'm speaking, not actually running, just how fast I talk because.
- [03:49]
Scott R. Anderson
It is so fast and it is confident it can outrun you even if you're in a car. It really has very little fear of people, it turns out, and so it kind of grazes nearby and as long as you don't make any sudden movements, it's really not going to do very much. And so I had a great time. And, you know, you take these pictures and you upload them to lawfare's Slack channel and then everybody gets nervous because you're too close to big animals, even though you're not really.
- [04:20]
Ashley Deeks
Will you start wearing pronghorn T shirts into the office?
- [04:24]
Scott R. Anderson
You know, I have never seen a pronghorn T shirt, but you know what I'm gonna be doing while other people are talking while we record this show?
- [04:41]
Benjamin Wittes
Hello, everyone, and welcome back to Rational Security, the podcast where we invite you to join members of the Lawfare team as we try to make sense of the week's biggest, biggest national security news stories. It's been a big week. They're all big weeks these days. And I'm thrilled to be joined by an all star cast of my lawfare colleagues to work our way through them. First joining us is of course, lawfare editor in chief, Rational Security co host emeritus Benjamin Wittis, back fresh as a daisy from vacation. Ben, thank you for coming on the podcast.
- [05:10]
Scott R. Anderson
Great to be here. And yes, I have already found a pronghorn T shirt.
- [05:15]
Benjamin Wittes
There we go. All right. Also joining us is also fresh as flower of choice. I let her choose. Natalie Orpet Fullofares, of course, executive editor. Thank you for joining us as well, Natalie. You seem very put off by my flower comment. I was just trying to hit a theme here.
- [05:30]
Natalie Orpet
I just thought it was so endearingly false.
- [05:34]
Benjamin Wittes
I'm not at the office, so I don't really know. It's hard. It is 100 degrees here these days, so it's hard for anybody to be that particularly fresh. So no harm, no foul on this one. I think.
- [05:43]
Natalie Orpet
I did actually not bike today. I biked to work the other day and that was extremely ambitious in 90 degree weather, but feeling a little bit like a wilted flower. But thank you anyway.
- [05:53]
Benjamin Wittes
Indeed, I will be biking to the office as soon as we're done with this recording, which I am not looking forward to, but that's okay. Hopefully if I don't make it there by three, call the police. And joining us as well, back from the podcast again, thrilled to have her Lawfare contributing editor, University of Virginia Law School professor, national security expert extraordinaire, Ashley Deeks. Ashley, thank you for coming back on the podcast.
- [06:14]
Ashley Deeks
Thanks for having me back.
- [06:16]
Benjamin Wittes
Excited to have you own. I feel obligated to give you the wahoo wah. As a fellow UVA grad or as a UVA grad, I have to signal that otherwise I get kicked out of the alumni group. So wahoo wah to you. Thrilled to have you back on the cast as we talk through a couple of big stories, including a few that are up your lane. Our first topic for today Bracing for Fallout In a surprise move, President Trump joined Israel's military campaign against Iran over the weekend, using specialized US Ordinance to hit Iranian nuclear sites that were beyond Israel's reach. It's unclear to what extent the attack set back Iran's nuclear ambitions, and debates continued to rage over whether the president's actions were either wise or legal. But it did trigger an Iranian response against US Military bases in the Persian Gulf that resulted in no fatalities, according to reports so far, and that action was shortly followed by a tentative US Backed ceasefire between Iran and Israel. What best explains the President's decision to join the military campaign, and what will the consequences be, both in the region and back home in the United States? Topic 2 Destinations unknown in a short, unexplained opinion in the matter of Department of Homeland Security v. Dvd, this past week, the Supreme Court stayed a lower court preliminary injunction that had barred the Trump administration from removing immigrants to third countries with minimal procedural protections against threats of torture and other mistreatment. The exact ramifications of this holding are unclear, leading the Justice Department to now return to the court asking for clarification as to whether its ruling also invalidates a later order by the same district court judge applying the class wide prohibition in the initial preliminary injunction to a specific group of individuals involved in the litigation. What explains the Supreme Court's odd approach in this case, and what could its broader ramifications be for the Trump administration's immigration agenda? And topic 3 bove the law A now public internal Justice Department whistleblower report alleges that principal Associate Deputy Attorney General and current 3rd Circuit nominee Emil Bove endorsed plans to disregard judicial orders that would have obstructed the removal of foreign nationals and directed the Department of Homeland Security that it did not need to return certain deportation flights already in the air after a drudge directed much from the bench. How serious a transgression has Bove committed if these allegations are true? And what impact will they have on his third circuit confirmation? So, for our first topic, Ashley, I want to come to you. Of course, this scenario that we experienced over the weekend of the president opting to use military force against a foreign target, a familiar one in Iran, but a pretty extraordinary set of actions. Something that has been a possibility that's been debated by several past presidents, but always avoided, but now coming in the midst of of an Israeli military campaign aimed expressly at Iran's nuclear program, but potentially at much more than that. That's a situation which you've lived through. You, of course, were an attorney at the State Department, or I also was an attorney. I actually don't think we ever overlapped, unfortunately. But you were there for a number of years for me, and then most more recently were at the National Security Council as a deputy legal advisor, where you lived through some scenarios like this. So I'm kind of curious, just from your gut reaction to start talking about this. What was your reaction when you saw the announcement, the news that the Trump administration had taken this move over the weekend? How surprised were you? What jumped out at you legally, from a policy perspective, from a process perspective, to what extent did it strike you as extraordinary or something that is maybe not as big a surprise as it might have been to some?
- [09:34]
Ashley Deeks
Yeah. Thanks, Scott. So I'll just start by saying this has actually been an assignment that I give my students who take my International Law and the Use of Force class every year. I ask them to write a short paper about the legality of either the US Or Israel striking nuclear facilities in Iran.
- [09:53]
Benjamin Wittes
So you may have to change that. You have to rewrite that exam.
- [09:56]
Ashley Deeks
Sadly, I do. Well, they were short papers, and maybe not surprisingly, the students come out largely with a view that it would be unlawful, given the hypothetical that I gave them. But that's not entirely true. Some think it would be lawful. In terms of your specific question, I guess I wasn't hugely surprised, in part because people had started to signal this as a real and distinct possibility in the press. My mind does go to NSC as a place that would traditionally be the kind of belly button for interagency coordination. And obviously, my specific focus tends to go to the legal issues. As you all know, and as many of the listeners know, I think the NSC staff has been really streamlined, shall we say. Though that may be changing a little bit starting in the next couple of days. Under Secretary Rubio. But I don't think there's an NSC legal advisor. And when I was there, that was one of our primary roles, was to make sure we had interagency coordination on the international law and domestic law questions that would clearly arise in a strike like this. So I suspect that each agency's lawyers had already done internal thinking about the legal issues involved and I don't know the extent to which those legal analyses really fed in or helped drive or shape the activity. The one thing I did note, and we can talk about more, is the fact that the, the administration did produce a 48 hour report to Congress consistent with the War Powers Resolution. I was not sure that they would do that. So we can talk about what that said later. But that struck me as well.
- [11:50]
Natalie Orpet
Ashlee, had a question for you, actually, based on your experience, because one of the interesting themes here obviously is whether we should think of the rapid change from U.S. negotiations with Iran to a U.S. strike on Iran. And I wonder to what extent you think that Secretary Rubio occupying both the seat of Secretary of State and head of the National Security Council might have anything to do with that. I mean, I think it still seems a little unclear exactly who is directing what, but ostensibly you would think that the State Department is sort of leading negotiations, but at least the decision for using military force would go through the nsc. And I'm just curious what you think about the dual hat given this context.
- [12:43]
Ashley Deeks
It's really hard to tell. I mean, it's hard enough to do either of those jobs alone. It seems, unless you're Henry Kissinger, nearly impossible to do both and do both. Well, it's not entirely clear to me that State really had its hand on the rudder in terms of negotiations, sort of leading the negotiations with Iran. My sense is that that was being driven by Witkoff, who is, I think more operating outside of the White House. And in terms of strikes, I mean, it sounds like DOD had a very significant role here because this is a significant and complicated military operation, one that I think it would have had to dust off prior plans for and update and so on. So Without a doubt, DoD had a big role. So I guess I'm not really sure what role Secretary Rubio played here other than kind of standing behind the President along with the Secretary of Defense. And I think the chairman was behind him as well as President Trump describes the operations. But I don't really have a good sense of how much Rubio is helping to structure and shape and spending a lot of time on nsc. And it suggests that his interest recently in increasing the size of NSE up again suggest maybe he's found it hard to get NSC to kind of really help engage on these issues in a way that he wants them to.
- [14:07]
Benjamin Wittes
So let's dig into the legal side of this to begin with and we can talk about some of the policy ramifications. We now have this 48 hour report the Trump administration has filed in this case, although there's a question as to whether it would do it and whether we do it publicly. Not obligated to disclose these publicly technically under the statute. Did not in the case of the Soleimani killing in 2020, although it was eventually made public through Congress, if I recall correctly. But we do have a letter from the administration. It's now released publicly. It provides a legal justification, basically makes the point that they're acting in collective self defense of Israel. Also talks about the need to defend American personnel and clearly acting under his Article 2 authority from a domestic law perspective doesn't make any claims about aumf, something that's always kind of floated around. Iran was repeatedly test ballooned during the first administration, both under 2001 and 2002 AUMs. We did see the administration rely on the 2002 AUMF for the 2020 Soleimani strike, but nothing like that in this case, just Article 2 authority and notably made an international law justification, says essentially this is necessary in proportion under national law and then references the collective self defense with Israel actually in a separate paragraph not discussing international law. But clearly that's international law sort of concept. So presumably that's part of the international law justification. How surprising was this justification or was it along the lines of what you might expect for something along these lines? And what parts of this do you think might have given executive branch lawyers generally and then in particular maybe those in this administration a little heartburn? Where were the biggest points of tension that you would have seen going into this? And how much would they have made a difference? I mean, how much would they have impacted potentially the reasoning here?
- [15:45]
Ashley Deeks
Let's see. So I was a little surprised to see the sentence that says the US took this necessary and proportionate action consistent with international law. It did make me wonder which actor urged the White House to put that in. We've just talked about the absence of an NSA Legal advisor. So maybe that was the Defense Department, maybe the State Department, maybe the Justice Department. The theory seems to be collective self defense of Israel, which itself is acting in self defense. We think there's a kind of offshoot theory that Israel has just been in an ongoing armed conflict with Iran. And so you don't have to conduct quite the same Usad Bellum analysis that you would if you think this is a kind of new operation. There seems to be a reference to protecting US citizens at home and abroad. Is that a reference to strikes by Iran on the conventional kinetic strikes on US bases? Is that a broader reference to the threat that we think a nuclear Iran would pose to the US? I'm not sure. The way it's written, I think it's not entirely clear. There's also a suggestion that this is really kind of preemptive self defense of the United States. And so I think, as you know, that has long been a source of significant discussion internationally within the US within the US Government. As you know, this was a concept contained in the 2002 Bush Nuclear National Security Strategy before the invasion of Iraq, but was not actually the legal basis on which the US rested when it was supporting its invasion of Iraq. So surely there were conversations inside the government about whether we should think of this as joining and helping support the Israelis in their ongoing armed conflict with Iran versus engaging in a new set of strikes on a new, significantly different target and whether there was enough basically imminence of the threat to make this a credible argument.
- [18:14]
Benjamin Wittes
Another part that jumped out at me, and I'd be curious about your thoughts about it, is this question of the domestic law standard we've heard recent administrations put forward basically says the President can use his Article 2 authority, which is clearly what they relied on here since they issued the two AUMFs. Where it's in presuming Congress hasn't legislated the contrary, where it's in the national interest, that's kind of an easy, not very particularly constraining of prong. And then where the nature, scope or duration of the conflict, and specifically the anticipated nature, scope and nature, meaning it takes into account escalation, isn't going to rise to the level of a war for constitutional purposes we understand to mean some level of major war where congressional authorization is, or at least is arguably required by the declared wars of the clause of the Constitution. And unlike some other military actions, you can certainly see a case why this would raise big questions. Under that threshold, you're attacking a paramount nuclear program for a large regional power that has the ability to threaten US Forces in the region and has and does so regularly already, but certainly could do so at a greater scale, as we saw. How do you think that sort of consideration enters in here? I mean, is this just not something that rises to that level? And I know, like in this opinion, one thing that really jumped out to me about this 48 hours opinion or 48 hours report is it says a few things about reasons they think escalation isn't a risk. They say we used airpower. We specifically did limited strikes with just one purpose, designed to minimize casualties, did not use any ground troops. And these are all things that, if you look at prior executive branch opinions, people have been cited before. Is there a reason to think that this sort of consideration might have shaped the scope of this operation? Or at least we're scoping the justification for it 100%.
- [20:04]
Ashley Deeks
I think that's absolutely right. So if you look at the OLC opinion signed by Steve Engel regarding Syria, it has a line that says, given the absence of ground troops, the limited mission and time frame, and the efforts to avoid escalation, we don't think that this operation in Syria rises to the level of war in a constitutional sense. And I think the War Powers Letter almost tracks that, not verbatim, but definitely is thinking about those same issues it mentions right up front. The strike was limited in scope and purpose. No ground troops were used in the strike. The Iranian military troops and facilities not targeted. That was presumably an effort to reduce escalation risk. And the mission was planned and executed in a manner designed to minimize casualties, deter future attacks, and limit the risk of escalation. So without a doubt, whoever wrote this, the draft of this letter, was looking at things like the OLC opinion, as we know, predicting escalation. Predicting anything is hard, right? In foreign relations, predicting escalation and what other states are going to do is very hard. But I suspect people also argued, well, we were a little worried about escalation in the Soleimani strike. We ultimately concluded that we didn't think Iran was going to escalate in response. And they didn't really. And so we can expect the same kind of behavior here.
- [21:35]
Benjamin Wittes
So, Ben, I want to pull you in a little bit on this because, of course, you were out on vacation last week. We had a big, long conversation about this with Dan and Dana, and Tyler spent the whole session before the US Strikes talking about the regional ramifications. I kind of want to talk to you a little bit about what this may mean from a regional Perspective. Although, Ashley and Natalie, I want to hear your perspectives on this as well. You're a close follower of the region generally. This is something that Israelis have been threatening to do for 20 years at least. It's been a real possibility multiple times. Very, very much a sense that it was imminent and could happen. But Israel has always stopped short, often under US Pressure. Didn't happen here. And then we see the United States take the step to get involved, which initially it seemed like it was shying away from doing. What explains that step, and what are the kind of regional ramifications of the decision by the United States to take this extra step to get involved?
- [22:29]
Scott R. Anderson
Yeah. So let me preface this by saying that I don't think I know the answer to this, and I don't think anybody else does either. And we probably won't know until the Bob Woodward book that details the internal synapse firings of, you know, certain synapses in Trump's head. Have coffee with Bob Woodward on a regular basis. And when they give their. They all speak on background, of course. And when they do that.
- [23:03]
Benjamin Wittes
And the chapters will leak it to the Times exactly two months in advance of publication. Be a little different than the final version. Yeah, we know, we know.
- [23:09]
Scott R. Anderson
The 40 years later, we'll know which synapses fired in Trump's head because they're stored away in some vault somewhere. You know, that'll be kind of the first draft that we know. Let me give you three plausible theories of how we came to be involved. The first is that I think is the most likely that Trump loves to win. And, you know, he, he saw the Israelis take this incredible action. And whatever one thinks of Israeli policy in other areas, this action was incredibly impressive. And, you know, from the level of the intelligence they had about where individuals are going to be to, you know, sending drones through windows, drones that are based in Iran that the Iranians didn't know about it. It was kind of like Ukrainians hold our beer for a second. You know, sending drones through very specific windows to blow up, blow up individual people. And Fox News is going gaga over this all day long, right? And this is, you know, Trump is watching and he's got a certain amount of FOMO and realizes the train is leaving the station. And it can either be about him being the dark cloud over this, you know, bright spot of exciting military action, or he can get involved and claim the whole thing. And so in rapid succession, he a gets involved, drops the biggest bombs, the ones the Israelis don't have, declares the Iranian sites It seems falsely. But we'll still have to wait on that. Completely obliterated. And then. And this I got a, I really got to give him credit for, gets a ceasefire, which seems two days in to beholding. And if you had told me that any president could, you know, just demand a ceasefire of the Israelis and Iranians and get it and then announce it on social media and then kind of police it through through idiotic truth social posts, I would have said that's extremely fanciful. But at least 48 hours in, he does seem to have done it. And so he, in a way that I think the story really wasn't about him four days ago, the story very much is about him now. And so that's theory number one, that it's really government by, or at least heavily inflected by fomo. Theory number two, which you might call the anti Semitic theory, is that he's just dragged into this by Bibi. You know, and this is not a nice theory because it kind of does imply this Jewish cabal kind of secretly running US Foreign or overly influential in foreign and US Foreign and defense policy. But on the theory that we should, you know, not. Not run away from a possible theory here. Look, Trump was clearly against this until the moment that he was for it. And what made him for it, either FOMO or the sense that the US Was going to suffer the consequences of this anyway because Israel was doing it. So you may as well make the operation as effective as possible. Now, again, I don't, I don't want to. I don't want to give voice to the, you know, the sort of bigoted formulation of this, but really that the lead actor here is Bibi, that Bibi did this against US advice, against US Desire, and in the face of a US Negotiation, and left the administration really relatively little choice but to support it. I think, honestly, theory A is more plausible than theory B. But let's also mention theory C, which is, you know, just chaos. As Ashley pointed out, this is a situation in which we have no policy coordination process, literally have dismantled the organization and operation that does policy coordination. We have a limp fish, dead fish Secretary of State who's not really involved with meaningfully in negotiations. The person who is involved in negotiations proudly knows nothing about Iran or missiles or nuclear stuff. He's a real estate guy who's friends with Trump and is, by the way, also negotiating a million other things as well. And so you're left with government by executive whim. And executive whim bounces around a lot and can be influenced by circumstance and need I. E. Scenario two can also be influenced by fomo. And so really, which is scenario one. So really looking for any grand theory of it is, is actually silly. And what you should, you know, focus on is a completely chaotic environment. And in chaotic environments, weird outcomes happen. And this is the one we got here. So those are my three working theories. I' they're not necessarily mutually exclusive and I'm trying to. I'm not honestly sure which one I prefer. I think I lean toward Theory A.
- [29:05]
Natalie Orpet
I'll add one additional theory which I think is completely and utterly implausible, but we may as well mention it as long as we are in such a state of uncertainty. And it is implausible for all of the reasons that Ben just said. But there is the theory, perhaps, perhaps that the earlier negotiations that the US Was holding with Iran were all a ruse for this very cleverly coordinated attack between Israel and the United States, and that there was a lot of intelligence sharing with a very tiny group of people who had this grand strategy that was not being coordinated through an interagency process, but was being kept very close hold. And it played out exactly as that mysterious small group of people strategized that it would.
- [29:57]
Scott R. Anderson
And why do you think that that's completely implausible? I think on the left, that's kind of considered almost a given that that's what happened. Right. So why do you consider that theory implausible?
- [30:11]
Natalie Orpet
I think because there's not any evidence. And I mean, to be fair, yes, a lot would be completely unknown and it is, I suppose, possible that nothing would have leaked to the press, even murmurings of the possibility that this was going on and there were some sorts of bilateral conversations between Israel and some person high up in this small group of people within the Trump administration. But I find it unlikely that that was going on and I find it unlikely that the number of things that needed to happen in order to prepare for such an operation over the course of this head fake and bait and switch could be accomplished with a tiny group of people operating in such complete secrecy.
- [31:02]
Benjamin Wittes
Yeah, I tend to find that a little implausible as well, for that reason, particularly because when you have a mercurial president, which I think even supporters of President Trump many will admit, he's a mercurial gentleman with a little bit unpredictable on the thumbs on the social media. So are you really going to be able to confidently execute a month long kind of conspiracy, one that hasn't put a lot of political skin in the game? I mean, he really did put himself and people in his administration on a limb saying we actually are pursuing these negotiations. And they waited for months. And these are months, notably where the window has been closing on the ability to do these operations as easily as possible because Iran has slowly been rebuilding its air defense capabilities, which were so dramatically wiped out in 2024. They still weren't there yet. They weren't back at full capacity by a stretch of the imagination. But ideally, I think if you were to do something like this, they would have done it three months ago, before they had three or four months to begin rebuilding, but said they haven't. I have an alternative theory I want to run by you. And occasionally I've had this thought and I think sometimes I'm getting red pilled because I have an instinct to say I try very hard because I know I have biases. And so I always try to find what's the most generous way to justify something that I might have issues or concerns with. And this is what I came up with, this. And I wonder if this makes sense. The administration seemed really worried about regime stability in Iran in its public comments after Israel started its military campaign. I think that might be genuine. I think those are correct concerns. If nothing else. A collapsed Iran, a failed state in Iran, would be a regional disaster of a scale far exceeding Syria, which was a major, major regional disaster for 10 or 15 years. And the Israelis were in a position where they were aggressively pursuing this military campaign, it seems like without the full support of the United States, although they didn't get a hard red light from the Trump administration and expanding rapidly its scope of what it was doing on the premise of doing nuclear strikes, but increasingly hitting a range of targets that were pushing more and more pressure on the regime and I think making regime collapse more and more likely. So if you're in that scenario and you're worried about regime collapse on the one end, and on the other end you're worried about, well, if a regime does survive, whether this one or another one, they're going to sprint towards a nuclear weapon as fast as you can. In that scenario, I actually find a move to say, let's do a big hit on Iran's nuclear program, setting aside the legalities, which I do think raises serious questions, but from a strategic standpoint, do a big strike on Iran's nuclear sites, kick them back, the timeline as far back as you can, although, again, not clear, we succeeded at that. And then immediately sue for peace and pressure both sides into a ceasefire so that Israelis lose their justification for their Military campaign, their basis for continuing to escalate gets cut out from underneath them because they've supposedly met their strategic goal at this point and you don't have to worry about the regime getting pushed any harder towards collapse. I kind of think that's actually persuasive. And I actually put this theory forward in a podcast Ben and I recorded with Dan Biman and Suzanne Maloney on Monday, and at the time said, but this is obviously wrong because the Trump administration hasn't sued for peace at all and they haven't put any pressure on either party to get it. 12 hours later, we have a ceasefire. And a part of me is like, I think this kind of thinks might be what happened. What are your all's reactions to that? Ashley, I want to come to you first on this. I'll put you in the hot seat. Am I completely crazy? Have I swallowed the red pill and I'm following the rabbit down the hole or whatever the metaphor people use for this? I haven't seen the Matrix for long, long time. Or is there something maybe to this? I'm kind of curious for your thoughts.
- [34:31]
Ashley Deeks
So it's a very sophisticated strategy, and therefore it suggests to me that it's wrong.
- [34:36]
Benjamin Wittes
Touche.
- [34:38]
Ashley Deeks
Right. I mean, I think what you say makes sense. And if you were a very thoughtful observer or participant in the kind of grander scheme and sitting back and trying to think, how do we get to where we want to be? What you say makes a lot of sense, but I don't think you can discount the chaos piece of what Ben described.
- [34:59]
Benjamin Wittes
So that chaos question, that problem is a persistent problem for this administration. Part of it's hardwired into the president, into the man. Right. And part of it is hardwired into the bureaucracy that tends to evolve around people like that. But then you do have stress moments and shock moments, and kind of every presidential administration does go through this, where you have growing pains when you come into office and you face a major crisis or you face other actions that kind of begin to knock things into order sometimes, or sometimes they cause them to break. How do you think this is going to impact how the administration goes about national security policymaking, legal policy making in the forward? Is this going to be something that knocks what has so far been a super chaotic six months of how the administration handles national security affairs a little more reasonable, like a little more stable, bureaucratically, administratively? Or is this more of a destabilizing event?
- [35:48]
Ashley Deeks
So every experience that a bureaucracy or an administration goes through, I think sets a precedent and also exercises certain muscles that might not have been exercised to that point. So let's hope that we're not about to face another bombing of another country's nuclear facility in the next month or two. But the broader point is that it might illustrate to senior actors that process can be helpful and not just delaying. And this has given them a chance to stretch their legs on it. I will say you can see on the outskirts of what we've been talking about some kind of enduring bureaucratic moves that suggest that the bureaucracy has not totally been dissipated. And what I mean by that is first we did apparently give our allies a heads up in advance of doing this. That includes the Brits, it includes the Germans. That is often something that regular order administrations will have on a chart of things to do before the major event happens. We see the 48 hours report that we've already talked about. That's part of the kind of regular process when you're talking about military force. And we do see intelligence community reports, news of them coming out, both beforehand. Right. About how close Iran is to actually making a run for a weapon. And then we're seeing battle damage assessments afterwards. Those are all kind of part of the regular order that I guess it's still hard to fully eradicate. And that's a good thing.
- [37:26]
Benjamin Wittes
Well, speaking of some confusion potentially on the battlefields and in the bureaucracies in the Middle east and in here in Washington, D.C. let us go to some other government action causing some confusion here. Just a few blocks away at the United States Supreme Court. Earlier this week, we saw the United States Supreme Court issue an unexplained opinion I think is generous or is a fair way to describe it. It is not really an opinion. It is a one paragraph kind of directive clarifying that they are staying a preliminary injunction that had been granted to a class of people in prior litigation by a district court, basically saying all the people in this class, which is people who may be subject to removal to third because they could not be removed to their country of origin or country of entry or certain other countries, could not be removed without certain advance notice or certain procedures in place because they had to have the opportunity to make certain assertions regarding fears of prosecution, whatever the third party country was, beyond what DHS had tentatively applied, which is, I think it's fair to say, very light process in that regard. And in some cases really not much at all. If they have assurances and there's no exception expression by the individual in question, they have a fear of persecution in those third party Countries. This appeared to open the door to removing these people. Except that the Justice Department. Probably not Justice Department. The district court judge then came back and said, yes, they have stayed my preliminary injunction for the whole class. But following up on that, about a month later, I issued a very specific order clarifying how it applies to eight specific litigants in the matter before me. These are the individuals who are being held in Djibouti that had originally been en route to South Sudan, were kind of held in Djibouti pending whatever process is required by the courts that have been there while this litigation has been ongoing. Said essentially for these people, my later order still applies and it hasn't been invalid by what the Supreme Court said. And that's going to stay in place. That is now being appealed back or not quite appealed. The Justice Department is now going to the Supreme Court asking for a clarification. Hey, did your order staying the preliminary injunction from April also invalidate this judicial order from May that interprets and applies the bar in the preliminary injunction to these specific individual plaintiffs? It's a super interesting question and it also kind of begs the question, why the heck didn't you explain what you were doing in the first place? Supreme Court? Because it's really hard to make sense of what the heck they're doing. So, Natalie, I want to come to you first on this. I know you've been following these cases a little bit. We've been following at Lawfare. Our colleague Quinta Jurassic has a wonderful piece up tracing this whole litigation and kind of using it as an emblematic of a lot of the questions raised by the Alien Enemies act litigation, habeas litigation in this context in this administration, notably published before this recent decision. So it doesn't quite incorporate that. Talk to us about what your reaction is. What do you think is happening here and what does it tell us about how the court is handling this whole broader set of issues, which is not going away because the administration is quite clearly still pushing forward on all fronts to try and get some of these things done. Even if it is surrendering battles here and there, it's still intent on pursuing the war.
- [40:34]
Natalie Orpet
Yeah. I mean, for the very reason you said, which is that the court says literally nothing about why it comes to the conclusion that it does, which is to stay the lower court's injunction. I have no idea what it's thinking, but I will say that I don't know, perhaps it's that these are sort of novel legal questions and they would like to see more briefing. I really don't know. I think that that's silly, but I think this goes to something that Justice Sotomayor said in her dissent and is also something that the petitioners have raised in their response to the government's request to the Supreme Court for clarification. The petitioners said, actually this may order that Judge Murphy, who is the district court presiding, had clarified recently upon receiving the Supreme Court decision is still applicable, still in force vis a vis the eight individuals detained in Djibouti. That that order was not, in fact, a sort of follow up to his April preliminary injunction, which the Supreme Court stayed, but was actually a remedy for the fact that the government had previously defied Judge Murphy's orders. And so if you think of it as sort of a clarification of an order that the Supreme Court has now stayed, then there is an argument that that should also be invalidated. But the petitioners are saying, no, that's actually not how you need to think of it. You need to think of it as a remedy that Judge Murphy fashioned in response to the government's defiance of court orders. And that raises something that Justice Sotomayor talked about in her dissent and which I really recommend highly that folks read Quinta's piece that tracks the history of what has happened over the course of the DVD case, which is really just a litany of responses, actions by the government that are, if not outright defiance of the court orders, just such facially absurd arguments. For example, the notion that by deporting individuals after there was an injunction in place, continuing to deport them was not defiance of a court order because the flights taking these people out were manned by DOD and DOD was not a respondent in the case. I mean, that's just ridiculous. And it's a series of actions by the government to that effect. And Justice Sir Mayor says by taking this action, especially with no explanation, the majority is completely closing its eyes to the reality of this case and is operating in a vacuum of what you might do if you knew nothing about what has happened below. And I think that that is not only ridiculous in the context of this case, when you really know the facts of what's been going on and you know the procedural history, if you care at all about the integrity of lower court orders and the notion that everyone, including the government, needs to follow orders of the court until they are overturned on appeal, then you should be really alarmed by this. And it's not just in this case. It's a broader pattern which we've been seeing in other cases as well.
- [44:02]
Scott R. Anderson
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- [45:35]
Benjamin Wittes
So I've been really surprised by the focus on the remedial nature of the district court's May order versus the April PI being the basis by which people think it kind of does stand, which has been the focus of a lot of the analysis. The judge himself doesn't actually say that. He just has a docket order as far as I can tell, although maybe there's more to it that I haven't gotten to read yet. If there's a longer opinion. I looked in the docket earlier. I didn't see one available, but in my mind there's a separate question here or a lot of other grounds by which this could be as well that Sotomura kind of gets at in her opinion, which is the best indicator we have of the Supreme Court's reasoning behind this. Another point that she makes is that a ton of the objections were jurisdictional to the specific PI, and in particular to the fact that it was the certification of class action, which at least the government maintained was not permitted under statute in this particular immigration context. Well, if that's true, you could easily see the supreme court invalidate a preliminary injunction that applies to a class as overly broad, but not invalidate one that applies to specific litigants in a matter before a judge that has the exact same rational substantive legal basis because one would pose a jurisdictional problem, one wouldn't pose the other. That's why it's so wild to me that Supreme Court would do this without explaining what it is, because the government has put forward 10 arguments in the alternative as to why this is invalid. And if you don't know which one, you don't know what to do as the district court about how to manage matters like this moving forward. It's just wild to me. I want to come back to what this means for litigation matters going forward. But first, I think it's worth digging into some of what the actual stakes are here and the policy that the government has advanced and how it interfaces. And Ashley, this is something you've actually written on in a very different, not that different, a somewhat different context a while ago. I know it. You may have touched on it as well. Since then, I know it particularly from a Council on Foreign Relations report you wrote long before we met, but that I read avidly when I was applying for the same fellowship that you ultimately wrote it on a decade ago or so ago. And it is this question of assurances. The Department of Homeland Security has said essentially, look, where we get assurances from a third party country, somebody will not be persecuted or prosecuted. That is sufficient. Where we don't get assurances, the person, we tell them where they're going and they have to proactively assert a concern. And when they do that, then they get bunked into some process where they'll have some ability to contest things. But if they don't affirmatively assert a concern and or we have assurances, then that's fine for a third party country. And presumably what the district court was putting in place, this process that would have provided some time and notice to let people challenge it. One thing they're going to get at a big focus of a lot of these cases is going to be the credibility of any assurances they receive to the extent they are just judicially reviewable. So talk to us about what we know about how the government goes about these assurances, what they do, and to the extent to which they are subject judicial review in other contexts, and particularly the context when you address them, which is kind of the terrorism removal context.
- [48:42]
Ashley Deeks
Yeah, this topic took me back, way back. So diplomatic assurances the government has used for quite a long time, as you said they came up in and around the kind of Guantanamo detainees issue. Less controversially, I think they were something the government would use sometimes in extradition cases where the individual whose extradition was contemplated expressed a particular concern that he or she would be mistreated if returned or sent to the country seeking their extradition. And each of those settings has a slightly different legal framework around it. But in general, diplomatic assurances are basically agreements that the US Government, and frankly, some other countries like the UK will negotiate with with countries that are potentially going to receive an individual largely focused on the person's treatment. Sometimes they focus on whether the person would receive a fair trial or due process. But largely it's about treatment. And that, I think is the question at issue here in and adjacent to these cases. They have been controversial. And they've been controversial in part because people say, if you are worried us about how a foreign country will treat somebody because they have, for example, bad prison systems or government officials that inflict torture on people, why would you trust that government's commitment that they won't mistreat people? And I do think there are ways to make diplomatic assurances more credible, but they are not uncontroversial in terms of the legal framework. The reason the government would be doing this here is that we are bound by the Convention against torture, including Article 3, which says that you shouldn't transfer or remove somebody where it's more likely than not that they will be mistreated. Actually, the language is a little bit different. It's where there are substantial grounds for believing, but the US has interpreted that to mean more likely than not. I think they can be done on an individualized basis, as you see with extradition. I guess there's no reason they couldn't be general. And that is presumably what we would see in this deportation setting. The US did use them a lot for Guantanamo. And I think you asked about judicial review. I think the courts generally have been reluctant to review the executive judgment that a particular set of assurances are credible. And we saw this in the Munoff case in the Supreme Court. I think it was 2008 regarding detainees we were holding in Iraq that we wanted to transfer to Iraq. And the Supreme Court said, you can transfer them. We're not going to revisit that judgment in this case. I don't think we know whether there are any diplomatic assurances between the United States and South Sudan, for example, or Libya or Guatemala, places where people have been sent as third country destinations. So query whether these negotiations have happened. They can be hard to negotiate. So I think there's an absence of facts around that.
- [51:57]
Benjamin Wittes
And I'm kind of curious. I'm familiar with a little bit with certain similar arrangements in the context of the treatment of American citizens in prisons overseas, where part of the commitments the US Government tries to get often are essentially supervisory rights like periodic visits, regular consultations, depending on the concern level, depending on the profile of the individual employment in question, how much does that come into play in this context of these much more politically charged national security, charged in the terrorism context, and at least maybe in the eyes of the Trump administration in this context too, how much does that come into play? It's worth noting that in the case of the eight individuals in Djibouti and a lot of the other people that have been targeted as initial waves under this policy initiative, the Trump administration has very specifically selected people that have been convicted of crimes, in some cases pretty bad violent crimes. And that's a big part of their rhetoric. I mean, they are saying these are detestables. We don't want them. Obviously that shouldn't bear on their availability of due process. I think most of us understand that. But it's part of the rhetoric and it certainly seems to bear on how hard they may negotiate for these sorts of assurances. I guess what I'm asking is if you were a judge and you were to look at it, what would the indicators be you can look at other than the words on the page, Are there these follow up expectations and that sort of thing that fit into the overall credibility picture?
- [53:17]
Ashley Deeks
Yeah. One thing you'd look at is who is the official who's giving the assurance? And is that official in the chain of command over the people who will be watching the detention facilities? Because you don't want a case where the Secretary of State or Minister of Foreign affairs says, yeah, sure, we'll treat this person well, and that person is entirely removed from the Bureau of Prisons that has custody of the person. So who's the official? What are the commitments on the page? Is the receiving state party to the Convention Against Torture? Do they have domestic laws that make it impermissible to torture people? And as you noted, the supervisory access. So there have been assurances where the agreement has been to allow U.S. consular officials to visit individuals once they've been transferred to another country? I think in some cases related to armed conflict, it might be that the ICRC is given access. That wouldn't be relevant here. Could the Trump administration demand or strongly try to negotiate those kinds of access provisions? They could Will they? I think for reasons you've suggested, they seem unlikely to do that. And so I guess I'm not really sure. If a judge were to decide that he or she had the power to inquire into the assurances, I don't know what they would find, other than probably a quite basic commitment to treat people consistent with the Convention Against Torture.
- [54:44]
Natalie Orpet
I do want to say one thing, though, which is that this is all extremely important, but we are about two steps removed from this question becoming the key question. And that is because the legal question before the court right now is whether individuals should even be entitled to find out that they are being removed to a third country and given time to challenge or first to inquire as to what that country is. For example, this was something that Judge Murphy mentioned in his order. Some of these individuals probably have never heard of South Sudan, let alone had the time to investigate whether they might have fear of being sent there and then whether there is sufficient time and means for individuals to challenge their removal to that location. I think the law is complicated here because we are in an Alien Enemies act context where everything about it is uncertain. But I'll just say Ashley mentioned the Guantanamo context there. By law, detainees had 30 days notice before they were transferred. There was also, by law, a jurisdiction stripping provision that said specifically that courts didn't have the jurisdiction to review anything having to do with transfers. Needless to say, neither of those things is in place right now. But the actively litigated question right now is about notice and opportunity to contest.
- [56:20]
Benjamin Wittes
Ben, before we move on from this topic, let me turn back to you as our veteran court watcher and somebody who is in the brains, I think, of courts and judges more than a lot of people, given the kind of complex set of issues we have in front of us in this particular case, what explains Supreme Court's decision to not offer any sort of explanation in a ruling like this, with so many sorts of arguments, Is it simply a sign of disagreement except on the outcome that they don't feel a need to explain? Is it a timeliness issue? What explains that in this case? Because it strikes me as such an odd move that seems inevitably is going to lead to something like we're going to see here, which is confusion among the lower courts about what's prohibited, what they're prohibited from doing, what they aren't prohibited from doing.
- [57:03]
Scott R. Anderson
Yeah. So I think you're being polite. It is shameful.
- [57:07]
Benjamin Wittes
I'm the host. That's my job.
- [57:09]
Scott R. Anderson
And, you know, the most fundamental obligation of the Supreme Court is to add clarity to the law. Right. And to give guidance to lower courts and to litigants. And if there's one thing that it really doesn't do, when you have an order that, you know, just says the stay is granted and then has a 19 page dissent and you really actually have to work to figure out what the stay, which does what and stays what in response to what, and you have a lot of unpacking to do. And eight people who do it are going to get five, six or six different answers. The one thing you cannot do is say that the Supreme Court added clarity to the situation here and gave guidance to the lower courts, as evidenced by the fact that one side is outraged and the other side is asking for clarification. Right. So, you know, you're not. Clearly neither side is looking at this and saying, oh, okay, now we understand what the law. I think it's, it's really not, you know, quite apart from my, you know, philosophical disagreement and annoyance and perturbation at what I think the Court did, the fact that I don't know what the Court did is itself really upsetting, actually. So the second thing I will say is that I can only think of two things that can explain it. One is what you alluded to, which is the fact that you have six Justices who sign this and they may have six different reasons, and you get them in a room or a metaphysical, a virtual room, and they can't actually agree on a simple opinion. And so while maybe you have six separate opinions that really throw the thing into controversy or maybe you can just all agree on a result, so you do that. The second possibility, which I think is more likely, is that, you know, the norm in the shadow docket or the emergency docket, as it's now increasingly being called, is not to write opinions. It's just, you know, these are emergency orders and they're supposed to be temporary. And so, you know, when you're really steeped in these cases, it might seem a little more obvious to you than it is to an outsider what you're doing. And you may have a belief that, but less is more because you can do it very quickly. And you may not really understand that it's completely incoherent from the outside, even among people who watch it carefully. And so we do, even when we criticize the Court, we do have this sense that everything it does is considered and careful. And, you know, if we're being upset with it, we, we call that, you know, conspiratorial and planned and, but you know, these are six individuals and they may have just screwed up and provided less guidance than, than they thought they were providing. I will say one thing in furtherance of Natalie's point, which is that, you know, when you deport people to South Sudan, particularly who are not South Sudanese, non reformal, may not be the chief concern. You know, this is mostly an ungoverned space. And you know what the government of South Sudan, such as it is, or one of the militias may do to them. You know, the fear of political persecution or torture may be less than the fear like roughly proximate to dropping somebody in Antarctica, you know. You know, just of it's not political repression. You're worried about its exposure. And you know, this is a very dangerous place. That isn't what the treaty is about, but I would like to think it should be. What's, you know, these are by all accounts bad people and ripe for deportation and whatever. And I'm not opposed to deporting them, but I'm not going to drop them in Antarctica without a coat either. And I do think there's some non legal principle which we might. I don't know what the French for are you fucking kidding me? Is, but it's kind of like the, the are you fucking kidding me? Principle, which is like dropping people in South Sudan is just kind of not okay. And I don't want to lose sight of that amidst a lot of cool sounding French international law words.
- [62:23]
Natalie Orpet
Yeah, I mean the other thing worth saying is that there was actually reporting that one of the. Is this a government official? We don't really know because we don't really know who the government of Sudan is. But one of the people that may be a government official said that Sudan would receive these people and immediately deport them somewhere else, which adds to the Are you fucking kidding me? Principle. The other thing I want to say though, with respect to what the Supreme Court did here, is this again raises the question of whether on the emergency docket, when you're talking about staying lower court opinions, it does seem like this was reflexively pro government and the stay that was in place below was meant to freeze the status quo. That's the purpose of TROs and preliminary injunctions, which would then allow for the type of briefing that Ben, you were saying, I think accurately, fairly is missing in being able to give a considered judgment about the merits. But why in this case, the Supreme Court felt like the weight of the harm of the injunction favored the government being relieved from the injunction rather than just keeping it in place. I don't know. I don't understand that. And of course, as we've been saying, they didn't explain.
- [63:42]
Scott R. Anderson
I will just add that the relevant principle is the toutic moquet de moi principle.
- [63:49]
Benjamin Wittes
There we go. Well, we've got a few minutes left for our third topic, which is not entirely unrelated. We got a really bit of a bump. Bomb buster. What's the word I'm looking for, Really? A breaking news report of note, although really it's rooted in a single document.
- [64:06]
Scott R. Anderson
Bunker buster.
- [64:07]
Benjamin Wittes
Bunker buster, yeah. Very apt metaphor. I've decided to use their event in the New York Times. We have a report that came out just a day before, of course, Emil Bove, the candidate for the 3rd Circuit Court of Appeals from the Trump administration, current senior Justice Department official, bit of a controversial figure for a variety of reasons, and former private attorney to President Trump, indicating in a whistleblower report, alleges that he at various points engaged in conversations where they openly discussed ignoring judicial orders to advance the Trump administration's immigration policies. And this was related third hand by the whistleblower. But his understanding from communication he had with other senior Justice Department officials was that Emil Bove actually had given direction to the Department of Homeland Security, indicating that even after a district court judge, and this is Judge Boasberg in another line, the JGG litigation, kind of the first of these controversial immigration cases that have really risen all the way to the Supreme Court. A few months ago, even after the district court judge, Judge Boasberg said, you got to turn these planes around from the bench. When the line attorney, who happens to be the whistleblower in this case, relayed that to other government officials. Emil Bove issued contrary directions in his superseding those directions from the line attorney, essentially saying, nope, go ahead and deplane these people, land them. That is within the law, within the judge's order, contrary to the judgment of the line attorney, at least. I want to start with you on this, Ben, because I know you've looked at this report and have been thinking about it. And of course, it's in the context of the hearing that, as we record, is ongoing before the Senate in regard to Bove's confirmation and becoming a point of controversy there. How striking did you find these allegations in this whistleblower report, and how big a factor do you think they are likely to be or should be in the confirmation proceedings?
- [65:59]
Scott R. Anderson
Well, so they are utterly disqualifying, assuming. True. And I cannot think of a reason offhand anyway, not to believe at least to attach a presumption of truth to Mr. Ruvaney, the longtime career lawyer who made these allegations. That said, I also don't think you need them in order for Emil Bovey to be disqualified. The Eric Adams case, on which there are no, as best as I can tell, contested facts, is equally disqualifying. It doesn't involve violating a court order, but it does involve, you know, violating the fundamental ethical position of the Justice Department, which is that we don't make law enforcement decisions for political reasons, in a political sense, meaning for the political advantage or disadvantage of one party or another. And was so discomforting that the acting U.S. attorney resigned over it and several of her staff were removed. And this was, you know, an acting U.S. attorney installed by, you know, the second Trump administration. So I don't think you really need to get to it. That said, it is completely shocking, if true. Also not all that surprising from the record in the case. Look, Emil Bovey is a very complicated figure. Usually when somebody is not qualified to be confirmed for a position like this, it is either because they are highly ideological or because they're under qualified. Right. Think of Bork, Judge Bork, who the Senate voted down in the first case. And then, you know, you have other people who are sort of minimally or non qualified who sometimes become controversial in the confirmation process. Emil Bovey is an extraordinarily talented lawyer. I spent six weeks in court with him in the New York trial of Trump, and it was a honestly a pleasure to watch every time he got up to cross examine a witness to make an argument. He's a much finer attorney than his boss, Todd Blanche, and he is a graceful oral advocate. He's a very talented man. He is also, as best as I can tell, not especially ideological. I've never, I don't know him to believe stuff that's wild and crazy. He has a fairly conventional career. His problem is that he's deeply, deeply ethically compromised. And his behavior in office in the short time that he has been working in the Trump administration is just replete with examples of this, that he seems to have no ethical scruples at all. He has run roughshod over career people who have gotten in his way, he's fired people, he's behaved in a genuinely extraordinary fashion. And I've never quite seen a nomination like it where you kind of don't have ideological concerns about the person. There's no doubt that he's qualified and that he has the, you know, the skill set to be a very distinguished federal judge. I think the problem with him I've never said this about somebody. I think the problem is that he's just not an adequately ethical person to be a federal judge.
- [70:07]
Benjamin Wittes
So part of these allegations, if you read the whistleblower complaint, are very colored, isn't quite right, but they're from the perspective of one individual. And this is an individual who's a career attorney, who was the tip of the spear engaging with the court, court in the JGG litigation, among other matters, has a seat in the room, was an experienced person. But clearly there is a gap and some frustration with the gap between reports. He was giving directives, he was giving within the scope of what he at least considered to be the right role as the case manager and the person relaying directions from the court and some higher policy making body of which Bove was a part and may or may not, depending on how correct these third party reports the whistleblower got are, have played a role in executing. In terms of communicating with D.H. ashley, you were a government attorney for a good part of your career, most of your career at a variety of levels. How much of that rings true to you about the relationship? It's a little different than a lot of situations because obviously the attorney in the courtroom representing the United States has a bit of a vested interest, different from government attorneys on a lot of other matters, just procedurally or at least they are a conduit for information that can be more timely and important. But it's still a familiar phenomenon. I'd be kind of curious about your reactions to that.
- [71:24]
Ashley Deeks
Yeah. So you can tell as you read through it that Reuveni is extremely frustrated, obviously unhappy about the ethical decisions that he sees being made, but also frustrated because he can't quite get his finger on how all of this is being directed. And it did strike me that if you abstract this 27 pages out a bit, it is a somewhat familiar tale. Right. It's how hard it is at any given moment in a day around an issue to figure out where the particular action is, who has the pen, who's got the power, who is talking to whom. And also I think an example of how lower and mid level officials can frustratingly spin their wheels working on something, only to find that they are in real disagreement with the senior policymakers and the senior policymakers are running their own process, disconnected from what the worker level people are doing. So I do think the story at some level will be familiar. Not the, you know, as you say, not the asking somebody to misrepresent in court, but the kind of broader story would be familiar to many people who've worked in mid level career jobs in any of these agencies, even when senior officials are not up to nefarious tasks. And you can see the frustration in that. The only other thing I wanted to add is that it's of course deeply ironic that you have the big takeaway from this report of Bovet saying basically screw the courts at the very moment that he is seeking to become a judge on those same courts.
- [73:05]
Natalie Orpet
Yeah, that was exactly a point I was going to make. It's just he already has a pretty high level job. If someone wanted to reward him for his good work, that's already done. So the idea that someone who has demonstrated, at least according to this report, a real contempt for the judiciary wants to become a judge is deeply ironic. The other thing I'd say which relates to that is that in a way, different, different worlds, we would be holding him accountable in his present position for what's been going on, whether or not he had directed it. Because what government attorneys have been doing in these cases, some of them at least, have already led judges to, in the case of Judge Boasberg, make a finding that there is probable cause that the government was in contempt of court and in plenty of other cases has led to a lot of concern expressed among judges about possible defiance of court orders or just truly frivolous legal arguments being made or foot dragging exercises that are just simply not in good faith and not what the judiciary should be able to expect from the government. This is in the presumption of regularity framework and we're not in that world. But it's worth stepping back for a second to say we would already be holding someone in his position accountable merely for not stopping or remedying what is happening in the courts.
- [74:45]
Benjamin Wittes
Well, folks, on that note, we have reached our time for today. But this would not be rational insecurity if we did not leave you with some object lessons to ponder over in the week to come. Ben, what do you have for us this week?
- [74:55]
Scott R. Anderson
Well, folks, the weather is hot, really hot, and we have a guest from Charlottesville. We also have, you know, we're supposed to be light hearted in object lessons. We talk about heavy things elsewhere. So I thought to myself, what is the funniest thing I know about extreme hot weather in Charlottesville? And in a flash it came to me and I'm going to share it with you in its entirety. Here it is from 2011. Here we go.
- [75:37]
G
We had beautiful weather here for this weekend. Mostly sunny skies and highs in the upper 80s overnight. Tonight, partly Cloudy, mild, with those temperatures dropping down into the mid-70s. Now we've got some big changes here for the upcoming work week. Starting tomorrow, going to have a volcanic eruption right near Charlottesville and it's going to make things rather toasty across the area. We're going to see lava spill out into central Virginia and make temperatures in Richmond at 350 degrees. Fredericksburg at 345. Charlottesville, the hotspot at 400, not as hot off towards the Tidewater, a little bit more comfortable with highs near 100 degrees. The reason why we're going to have tidal waves moving in ahead of this, a global superstorm developing off towards the Atlantic Ocean. This thing is headed our way. But the key to the forecast right before this thing makes landfall, it is going to be deflected by Godzilla. Now, a lot can change between now and then. We're looking at the latest data. We'll continue to bring you the very latest. I do want to encourage you though that if you ever do see a sleeping coyote, do not wake it. Bad idea. Okay, here's the forecast. Volcano 350 there for Monday. Global superstorm on Tuesday. We could see maybe about 1, 200 inches of rainfall, wind gusts up to 1,000 miles an hour. Godzilla Wednesday. I'll be honest, I have no idea what's going to happen on that day after that though. How about this to finish off the work week? Low humidity, lots of sunshine with highs in the upper 80s heading into next weekend.
- [77:06]
Benjamin Wittes
I will be celebrating Godzilla Wednesday from here on out, if there's ever a doubt. Nice post apocalyptic vision of my home state of Virginia.
- [77:15]
Scott R. Anderson
It's called the last weather report you'll ever need.
- [77:20]
Ashley Deeks
Climate change.
- [77:22]
Benjamin Wittes
There you go. Exactly. And Godzillas, which are not unrelated in the latest series of movies, as I understand. Well, thank you, Ben. Natalie, what do you have for us for an object lesson this week?
- [77:31]
Natalie Orpet
Well, mine is much less interesting, but I just wanted to give a plug to my local bookstore down by Eastern Market which is called East City Books, which in the heat of the weekend, which was not nearly as bad as the week of this week I retreated to with my family and they have a lovely kids section where you can sit and read books to your child even if you don't buy them, which we did of course, because we like to support our local bookstore. But they also have a great selection and they have book talks there. And I just found out over the weekend they also have a kids book club that I'm going to sign my son up for. So shout out to E City Books. You guys should go check it out.
- [78:13]
Benjamin Wittes
Wonderful, wonderful suggestion. Well, for my object lesson this week I am sharing some sad news, some bittersweet news perhaps. As folks who have not caught on social media or on the Atlantic websites or on Lawfare's website, we have a departure from our ranks. Our own co host emeritus Quinta Jurassic has moved on, or is in process of moving on from Lawfare and Brookings, starting as a staff writer at the Atlantic in the weeks to come. It's an incredible, exciting opportunity. And of course, this is not the first co host that the Atlantic has stolen from National Security. Shane Harris is down there as well. That's why I invite you all to join my Change.org petition to Jeffrey Goldberg, the Give us back our co hosts petition to get back Shane to get back Quinta, we'll take David Sims from the Blank Check podcast, which I quite enjoy too. Make it a three for Jeff. Throw them all in. Send them our way. No, in all seriousness, because it's a huge opportunity for Quinta and an incredible recognition of her great work. It's also very sad for us here at Lawfare and at Rational Security, so we will miss her voice and her views and her writings for us. Although hopefully we can lure her back onto the podcast on occasion. But best of luck to Quinta. Look for her at the Atlantic and her writing, I'm sure, among other places. And we wish her the best of luck in this exciting new chapter of her career. And on that bittersweet note, Ashley, I'll hand it to you. Bring us home. What do you have for your object lesson this week?
- [79:31]
Ashley Deeks
So my object lesson is alone. This is a reality series on History Channel which otherwise seems to have gone off the rails with lots of extraterrestrial stuff. But I highly recommend Alone. There have been about 12 seasons of it with some variants, including Ellone Australia. The premise, as some of you may know, is you're dropped in the middle of nowhere. Often it's the Canadian Arctic in the fall, South Sudan. No, no. But you know, that would add some complications. You have 10 items. You're your own camera person. You have to sequence. Are you going to get water first? Are you going to get food, shelter, rain, bugs, cold? Everything you would expect people trap moose and kill porcupines and eat sedge grasses and things like that. But it is a fun party game to assess how many days you yourself would survive in a situation like this. One guy survived 100 days in the Arctic winter and I think could have kept going. So it's a really fun show to watch. Highly recommend it.
- [80:34]
Benjamin Wittes
Wonderful. That's a great suggestion. I always liked the show Naked and Alone, which appears to be a slightly more family oriented version of which is great.
- [80:43]
Ashley Deeks
So we'll do People Are Not Naked.
- [80:44]
Benjamin Wittes
Yes, there you go. That would make the Arctic Canadian. Well, it is particularly challenging, I will say, if nothing else, Naked and Afraid. That's it. Not Naked, Alone. Naked and Afraid. Well folks, that brings us to the end of this week's episode, but Rational Security is of course a production of Lawfare. Be sure to Visit us@lawfairmedia.org for our show page, for links to our 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, our docu series on the war in Ukraine, available in your podcast podcatcher now. In addition, be sure to follow Lawfair on social media wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening and sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast, among other special benefits. For more information, visit lawfaremedia.org support our audio engineer and producer this week was Noam Osband of Goat Rodeo, and our music, as always, was performed by Sophia Yan and we were once again edited by the wonderful Jen Path. Gotcha. On behalf of my guests Ashley, Ben and Natalie, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye.
- [81:55]
F
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