Rational Security: The “Wea Culpa” Edition

Summary

The Lawfare Podcast: Rational Security — “The ‘Wea Culpa’ Edition”

Date: November 5, 2025
Panelists: Scott R. Anderson (Host), Benjamin Wittes, Alan Rosenstein, Kate Clonick

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Episode Overview

In this episode of Rational Security, the Lawfare team returns to dissect three complex national security stories making headlines:

1. The internal crisis at the Heritage Foundation over the defense of Tucker Carlson’s hosting of white nationalist Nick Fuentes, and what it means for the right’s reckoning with antisemitism.
2. The astonishing collapse in the enforcement of the TikTok divestiture law, with Alan Rosenstein offering a public mea culpa for policy assumptions that proved deeply flawed.
3. The Trump administration’s deployment of “war on terror” legal concepts—unlawful enemy combatants, terrorist group designations—against narcotics traffickers, and what this says about law, rhetoric, and power.

The show is characteristically sharp, self-reflective, and darkly funny as the hosts probe the legal, historical, and political threads connecting these seemingly disparate stories.

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1. Cracks in the Foundation: Heritage, Carlson, Fuentes, and the Politics of Antisemitism

Key Segment: [06:07–38:24]

Main Points

• Crisis at Heritage Foundation:
  Heritage president Kevin Roberts defends Tucker Carlson after Carlson hosts white nationalist Nick Fuentes. This sparks resignations and intense intra-conservative conflict.

• Roberts’ “Pseudo-Apology”:
  Attempts to recast his comments as standing against cancel culture, but his explanation is hard to square with initial remarks.

• Antisemitism on Right and Left:
  The panel explores the enduring, cross-partisan nature of antisemitism and its recent escalation among young conservatives.

• Political Use vs. Reality of Antisemitism:
  Benjamin Wittes and Alan Rosenstein highlight the folly of weaponizing antisemitism politically, warning that centuries-old prejudice transcends contemporary ideological divides.

Notable Quotes

• Alan Rosenstein (on antisemitism’s political dynamics):
  “The problem with the ‘no enemies on the right’ is that the right has Nazis… There are out and out antisemites on the far right. And there are more of them on the far right than on the left. This is just a fact you can confirm with a ton of social science data, both historical and current.” [11:20]

• Benjamin Wittes (on the depth of antisemitism):
  “Antisemitism is old and it is primal and it exists in all political movements. The mistake that the conservative movement under Trump made was to declare war on antisemitism as though it is a creature of the left.” [17:57]

• Kate Clonick (on inevitability of MAGA schisms):
  “MAGAs had an insane white nationalist faction... and then there was the Jewish son-in-law of the president and all he brought under the tent. There’s just an inevitable point... suddenly Nick Fuentes is going to be sitting next to somebody with a yarmulke.” [26:16]

Panel Dynamics & Tone

• Moments of dark humor, references to generational divides (“elder millennials”), and an unusual degree of candor in confronting both institutional hypocrisy and Jewish communal naiveté about political alliances.
• The panel repeatedly warns against drawing simple left/right conclusions, noting that political expediency cannot exile such an enduring, protean form of hate.

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2. Turning Back the Clock: Law, Failure, and Mea Culpa in the TikTok Ban Saga

Key Segment: [44:04–60:45]

Main Points

• The TikTok Policy Failure:
  Despite bipartisan support and a clear legal mandate, the divestiture law has been ignored by major tech companies and the Trump administration. No enforcement, no penalties.

• Alan Rosenstein’s Mea Culpa:
  Rosenstein admits he failed to anticipate the degree of institutional breakdown and non-compliance:

  “I did not appreciate that the President would come in and just refuse to enforce [the law]... I did not appreciate that Congress... would say, ‘We passed that thing, I actually don’t want to talk about that anymore’...” [46:09]

• Institutional Breakdown:
  The hosts reflect on how U.S. legal and administrative machinery has melted down—especially the willingness of companies to violate obvious legal mandates with impunity.

• Law, Policy, and Nihilism:
  If law is honored only when institutions care to enforce it, what is the point of legal analysis? The panel asks what role remains for legal experts when lawlessness is routine at the highest levels.

Notable Quotes

• Benjamin Wittes (defending reasonable assumptions):
  “It is not the job of a policy analyst to assume the entire system fails to work... We are always operating within an understanding of how the system operates. Usually in the United States, the law—capital T capital L—is one of those parameters.” [54:24]

• Alan Rosenstein (on the meaning of legal analysis):
  “If the law doesn’t apply anymore... I’m just the umpire. If the players start hitting each other with bats and knives, I’m no longer the umpire. I’m just some guy.” [60:27]

• Kate Clonick:
  “There was no path... everyone would have thought you were batshit if you had argued, in 2024, that what was really going to happen was now that the law was just going to get ignored... sticking [it] in a drawer and making sweetheart deals with DOJ.” [51:18]

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3. A Foe By Any Other Name: “War on Terror” Rhetoric and the Trump Administration’s Campaign Against Drug Traffickers

Key Segment: [61:04–74:47]

Main Points

• Repurposing Terrorist Rhetoric:
  The Trump administration, led by figures like Pete Hegseth, labels Caribbean and Pacific drug traffickers as “terrorists,” even calling detainees “unlawful enemy combatants” and drawing direct parallels to post-9/11 policies.

• Legal Subtleties vs. Political Theater:
  Anderson argues this rhetoric is mostly about creating a “camp” spectacle of toughness—not about legal reality. There’s no AUMF, no genuine legal predicate.

• Danger of Precedents:
  Benjamin Wittes expresses personal regret, noting that techniques and legal authorities built in good faith post-9/11 are now being misapplied to fundamentally different situations, without legal or moral justification.

Notable Quotes

• Benjamin Wittes (on post-9/11 legal structures):
  “Some of it is window dressing, but some of it’s worse—some of it is bullshit. The idea that you can conduct kinetic strikes against members of an organization because you have designated that as a terrorist organization is gibberish.” [63:37]

• Scott R. Anderson (on the legal reality):
  “When you are using that rhetoric, you’re doing two other things... You’re saying, ‘This is the same thing as we did after 2001 and the terrorist acts.’ And it’s absolutely not—you don’t have an AUMF, you have no congressional authorization. That matters a lot.” [71:43]

• Alan Rosenstein (on losing track of legal logic):
  “I have utterly lost the plot on what it is that we are doing right now. Please someone explain this to me.” [71:08]

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Additional Memorable Moments

• Millennial and Jewish Identity Banter:
  The episode opens with lighthearted ribbing about names and generational divides, and pops back into the repetitious motif of having a “horseshoe next to the mezuzah” as a reminder of history’s cynical symmetry.
  “Every Jew should have next to their mezuzah a horseshoe just to remind them of the reality of politics.” — Alan Rosenstein [24:13]

• Darkly funny object lessons:

  • Ben’s delight in a new projector; Alan’s literary rabbit holes; Scott’s fervor for a hard-sci-fi tabletop RPG; Kate’s aesthetic celebration of Romanesco cauliflower.
  • As always, the show mixes national security seriousness with playful, self-effacing closure.

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Segment Timestamps

| Section | Timestamp | |------------------------------------------------|--------------| | Technical Banter, Panel Introductions | 01:10–05:03 | | Antisemitism and the Heritage Foundation | 06:07–38:24 | | TikTok Law, Policy Analysis, Mea Culpa | 44:04–60:45 | | Trump Admin’s New “War on Terror” vs DTOs | 61:04–74:47 | | Object Lessons & Sign Off | 75:23–end |

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Summary for New Listeners

This episode is an essential listen for anyone interested in how the US legal/policy apparatus is being stretched and strained by contemporary politics. The hosts offer rare candor—confronting not only the facts, but their own roles, limitations, and miscalculations as experts. You’ll come away with a deeper understanding not just of the week’s news, but of the structure and fragility of our institutions, the dangers of political expedience, and the persistence of prejudice across the partisan spectrum.

“Your political borders don’t map onto our reality... that’s how I feel about antisemitism. If you want to understand antisemitism, you gotta start in ancient Greek.” — Benjamin Wittes [21:16]

“If the law doesn’t apply anymore... I’m just some guy.” — Alan Rosenstein [60:27]

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Transcript

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[Scott R. Anderson]

Kate, you have been with us for months now, and somehow we have not gotten you a proper microphone. You're recording off your laptop, mike.

[Kate Clonick]

Yeah, well, I have a microphone, first of all. It's a very good microphone. It was sent to me by none other than Hawkeye for taping his podcast.

[Scott R. Anderson]

You mean Clint Barrett? Oh, Alan Alda. Ooh, that is even better.

[Alan Rosenstein]

That is a charismatic man.

[Kate Clonick]

Good lord. Yeah, he's. He's kind of like.

[Alan Rosenstein]

Also, just on a personal note, there are so few cool guys named Alan in the world, and the fact that Alan Alda exists and spells it the right way. Spells it the right way. It's like, up there with Alan Alda and Alan Turing. And who's the guy that plays Jack Reacher? That's another. I mean, that's just a jacked Alan.

[Sponsor Voice 3]

Does Alan Alda have a Z and.

[Benjamin Wittes]

An S H T in Alda?

[Alan Rosenstein]

Yeah, sadly, sadly, sadly not the. The last name is too much to hope for.

[Scott R. Anderson]

But I'll.

[Alan Rosenstein]

I'll take a first name.

[Sponsor Voice 3]

Alan.

[Alan Rosenstein]

That's a cool name.

[Kate Clonick]

But I have. I have this great mic, and it's fantastic. And it was like. It's like. You know, it has, like, a sentimental place in my heart, obviously, and I need to. My computer won't recognize it, so I need to upload a driver, and I feel like it's like 1998, like, that I uttered that sentence.

[Alan Rosenstein]

I just say as a. As a cranky elder millennial, I just want to make the point that this generation doesn't know how good it has it. We used to have to download drivers for our keyboards over like and walk.

[Benjamin Wittes]

Both ways 14k uphill to school.

[Alan Rosenstein]

I mean certainly wait 25 minutes to download the latest smash mouth mp3 over.

[Kate Clonick]

Naps or Homestar Runner.

[Alan Rosenstein]

Oh, never.

[Scott R. Anderson]

When gif animations were all you could get. Exactly. Just three moving images.

[Kate Clonick]

I teach, you know, so my Internet law class, there's always a moment where I have to be like. So in the first Facebook, it was static pages.

[Alan Rosenstein]

Well, the.

[Kate Clonick]

The Facebook and people hid that they were like. And people thought it was like dating. And dating online had a huge stigma. And I used to go to weddings and I used to be like sworn to secrecy that they'd met each other on like match.com or like eHarmony.

[Scott R. Anderson]

Can I share an embarrassing profile photo? I think explains the dangers of being an elder millennial. So I was like one of the very first Facebook generation that came out like my freshman or sophomore year of college or at least came to my college.

[Alan Rosenstein]

Hey man, I'm use 173 of Facebook or something like that.

[Scott R. Anderson]

Really? Oh, wow.

[Alan Rosenstein]

Definitely low triple digits.

[Scott R. Anderson]

Hundred percent Impressive. Impressive. So I came to like pretty early to college. And so of course I had like for a while, particularly before you had photos. You kind of could just do your profile photo as your main photo. So I had a bunch of like fun college guy profile photos that I would replace, but they get saved as your profile photos on a history. And so I later in my life spent a year and a half in Iraq. Didn't have the most active romantic life, needless to say. It was like a 12 to 1 gender ratio. And so came back to society and civilization was like, I got to. I got to start dating. Getting out there. I signed up for what Hinge or Bumble? I can't remember. One of.

[Alan Rosenstein]

One of the dating coffee meets bagel.

[Scott R. Anderson]

There's so many something like that. And what it does is it takes all to populate your photos. It takes all of your old Facebook profile photos. So they literally had me being like, so smoking cigarettes, drunk off my ass. Like big long beard. At one point, I had Christmas ornaments hanging from my nipples from a holiday party I went to. And it was so.

[Alan Rosenstein]

Well, that's the name of the rat. That's the name of the rat. Sec episode, everyone.

[Scott R. Anderson]

There you go.

[Alan Rosenstein]

I just look forward, Scott, that when you are nominated to be the legal advisor at State in the AOC administration and you're at your Senate confirmation. Ted Cruz, this is the story of the line. Ted Cruz asks you about the Christmas ornaments hanging from your nipples.

[Scott R. Anderson]

I just can't believe photos out there.

[Kate Clonick]

Somewhere they gave you that. They gave you like security clearance. All of you like morons after that.

[Scott R. Anderson]

Hello, everyone, and welcome back to Rational Security, the show where we invite you to join members of the Lawfare team as we try to make sense of the week's big national security news stories. Joining me this week, we have a couple of old hands back on the show. First off, we have, of course, co host emeritus and Lawfare editor in chief Benjamin Wittes. Ben, thank you for coming back on the pod.

[Benjamin Wittes]

Always at your beck and call, Scott.

[Scott R. Anderson]

Often very much at the last notice and last minute and very much appreciated. Thank you, Ben. And also joining us, another co host emeritus, Alan Rosenstein. Alan, thank you for coming back on the podcast.

[Alan Rosenstein]

Thanks for having me. Though mostly you've come on to take advantage of my pained mea culpa.

[Scott R. Anderson]

It is. We're excited about this mea culpa. This was the impetus for this episode, admittedly. We're excited about it. And joining me to revel in your shame and humiliation is senior editor and recent serial guest Kate Clonick. Kate, thank you for coming back on the podcast as well.

[Kate Clonick]

Well, today is really a pleasure. I mean it. After this time.

[Benjamin Wittes]

Can we call this the Schadenfreude edition?

[Scott R. Anderson]

Perhaps. Perhaps. We have a lot of interesting stories happening in the news. A lot of them have been with us for a number of weeks. And we wanted to dig into a couple of slightly interesting angles or takes or aspects of some of these stories that we're going to focus on this week. So a little bit more offbeat topics, but things that we thought were interesting to talk about, that we've been talking about around the office and that a few of us have been writing on in Lawfare and in other places. Our first topic for this week, cracks in the foundation, the conservative Heritage foundation and the broader conservative movement it plays a central role in has been going through a very public crisis over the past week after its president, Kevin Roberts, came to the defense of right wing commentator Tucker Carlson after Carlson chose to host white nationalist Nick Fuentes on his not television show on his show of some sort. I think it's a streaming show, a streaming channel. Regardless, this has led to resignations at the Heritage Foundation, a condemnation by certain figures of the right of on other figures of the right, a pseudo apology by Roberts at this point and led to a little bit a reckoning, or at least perhaps the beginning of a reckoning over how folks on the right and to some extent Americans more broadly, have dealt with accusations of anti Semitism, its relationship to various policy questions, as well as hate speech and other sort of political perspectives. What should we be making of this crisis and what does it tell us about the different policy aspects that intersect with this question of anti Semitism? Topic 2 Turning back the Clock Treasury Secretary Scott Bessant promised that President Trump and Chinese President Xi Jinping would, quote, unquote, consummate a TikTok deal at their face to face last week. One of the creepier things that one of the creepier things that Treasury Secretary has ever said from one of our creepier treasury secretaries, if you look at him really closely, it's a lot. But no details have emerged on the deal to date which we make of the apparent holdup and of the TikTok saga altogether. And Alan in particular may have some heartburn over this one with a few months of Hindsight and Topic 3 A foe by any other name as the Trump administration has continued its military campaign against narcotics traffickers in the Caribbean and Eastern Pacific, US Officials have continued to draw parallels between current policies and the global war on terrorism, calling detainees unlawful enemy combatants and the groups being targeted designated terrorist organizations. If you are anarcho terrorist, secretary of Defense Pete Hegseth recently tweeted in relation to one of the strikes, we will treat you like we treat Al Qaeda. But how accurate are these parallels and, and why is the Trump administration deploying them in this way? So our first question is something I think a lot of people have been talking about this week. We have seen a ton of political speech, particularly around sort of folks on the right, but it's particularly also something that we've been talking about internally and ties into a lot of conversations we've had on national security at Lawfare and other places over the past few years. And that is this heated, heated debate, internal debate on the right over Tucker Carlson's decision in the first place to host Nick Fuentes, a prominent figure on the kind of extreme right in the white nationalist circles, a neo Nazi, somebody who said something, things that are very flattering of Hitler, somebody who's pretty openly a white nationalist, somebody who has openly a Holocaust denier to various stripes, hosted him on his live stream show. This led to people in conservative circles criticizing Carlson, a few people pushing to take action against him. There were some reports at the Heritage foundation where Carlson has various associations that his name was being taken off aspects of the Heritage foundation website. That appears to have led President Kevin Roberts of the Heritage foundation to release a tape statement where essentially he came to Carlson's defense saying, we're not going to cancel Carlson. He's an ally. People criticizing him, even if they disagree with him, are people who are weakening the movement and are doing bad things. You had a couple people around Roberts kind of echo these sentiments. A few people saying even after there started to be resignations from the Heritage foundation, saying essentially this would be addition by subtraction, welcoming the resignation by people who were they blamed as essentially virtue signaling over this sort of issue. Just in the last 24 hours, Roberts has walked back a little bit. He's kind of tried to cast it as saying, I was really trying to speak out about cancel culture. Obviously, we need to object to when people use hateful rhetoric, try and do things that lead the United States to a dark direction. To paraphrase his comments suggesting that he doesn't agree with Fuentes or his views, and that's okay to criticize and reject them, frankly, in a statement that's kind of hard to square with, Robert said a few days ago, alan, I want to kind of come to you first for your thoughts on this. I know we've been chatting a little bit on Slack and other kind of communication channels about this. Talk to me about your sort of initial reaction to this, because I think this ties into a theme we've talked about for years on the podcast, which is this strains of genuine anti Semitism on the right and on the left in circles at times. And then accusations of anti Semitism being. Being deployed that sometimes correlate, but don't always correlate with those. So what's happening here? What is this dynamic and what does it tell us about these kind of broader trends?

[Alan Rosenstein]

Yeah, I mean, I think to me it's just a sign that Jews control everything. Because, of course, it was only when you went after the Jews that this caused the Civil War and the conservative movement. So I really don't have much to say about that, except, you know, look, sometimes people like Nick Fuente, except you.

[Scott R. Anderson]

Can'T wait to be on Tucker's. Oh, yeah, Tucker, baby, the invitation is coming.

[Alan Rosenstein]

I got a Z. I got an SH in my last name. I'm here for you, man.

[Scott R. Anderson]

Take that, Alan Aldo.

[Alan Rosenstein]

The problem, okay, the problem with the no enemies on the right is that the right has Nazis at some point. I'm not sure how much more there is to say about that, Right. Like, this is the problem with no enemies on the left. There are lunatics on the far fringe of the left. There are also lunatics on the far fringe of the right. And although there is absolutely anti Semitism on the left, right. And like real, like real unambiguous prejudice, anti Semitism can have an interesting debate whether being anti Israel at a certain point is anti Semitic in a structural sense. It's an interesting conversation. We can have that. But we don't have to have that conversation right now because just as there are real out and out anti Semites on the far left, there are real out and out antisemites on the far right. And there are more of them on the far right than there are on the far left. Right. This is just a fact that you can confirm with a ton of social science data, both historical and current. We call those people Nazis and Nick Fuentes is one of them. And it's just, it's not like. This is not a complicated issue, right? This is not like Nick Fuentes has like, interesting views about the role of the Israel lobby. No, no, that's not we're talking about here, Right. He just hates Jews, which you're allowed to do in a free country. Right. Enjoy. But you're also allowed to be upset about that and you're allowed to criticize people. And you're also allowed to criticize people like Tucker Carlson, who himself has gotten a little. A little weird over the last years. And look, when you invite someone like Nick Fuentes on to your show and you basically don't ask any questions, you don't push back at all. Not because frankly, that's your shtick, right? You have no problem pushing back against Ted Cruz, right, when he comes on. No. You've made a conscious choice. Well, then we can, I think, criticize you for that. And if you have just a no enemies on the right mentality, it's going to lead you to very bad places. And I think what we're seeing is that, you know, the kind of quote unquote woke, right? Which is a great term, if only because it drives people on the right completely insane. It's a real problem. And by which I mean, and which I think the critics mean this obsession with like, very narrow identity policing and this kind of tribalism, whether on the left or on the right. And now we're seeing it on the right. So, I mean, it's a huge problem. It's interesting. It's always interesting to see, you know, what are the things that break Through. You know, I don't know why this is the thing that broke through. I mean, it may be because there are plenty of Jewish people at Heritage and in the conservative movement and they obviously are quite frustrated about this. Certainly it's not just, you know, Jewish conservatives that have criticized Fuentes and Tucker and Roberts over this. But, you know, I think the bigger thing is, look, I don't care about Heritage. The thing that scares me is that these views of Fuentes, right, the Grupper view, as he calls it, is just very prevalent, right? And it's just prevalent in, particularly among young people in the conservative movement, right, among young Republican staffers. I mean, there was just this scandal over the text messages of a bunch of D.C. republican staffers, right. Many of which were anti Semitic, but they were also just out and out racist. Right. As well. And you know, I remember there was this kind of parallel conversation a few years ago when people would look at college campus and they'd say, hey, the young people on college campuses are getting radicalized. There's weird stuff on the left. And one response would be, yeah, who cares? Just a bunch of college kids. Well, the problem is these are elite college kids that then become. Right, the next ruling class. Well, it's the same problem, right? You know, when J.D. vance tried to defend what the Republican staffers said by saying, oh, these are just some dumb kids who said some dumb stuff. Well, first of all, they're not kids, they're adults. But even if they were dumb kids, these were dumb kids. But they're gonna become the next Republican ruling establishment. And once these views are there, it's very, very hard to detach them. So, look, I think it's fun to watch Heritage's kind of self immolation, and certainly Kevin Roberts is kind of mouth word salad about this. But the thing that really scares me is that you have just a lot of anti Semitism and certainly Nazi adjacent rhetoric increasingly prevalent among the young people on the right. And you know, like I said, I have a Z and an SH in my last name and so do my small children. It doesn't feel great.

[Scott R. Anderson]

So I think I agree with that fundamentally. But I think there's something weirder going on here. Let me tee up. What I think is interesting about this and like, complicated and really intersects with a lot of like, policy conversations because something that Robert said, his initial statement really stood out to me is that he says specifically, while anti Semitism should not be condemned, he should be condemned. Excuse me, he did say that. He also said Christians can critique the state of Israel without being anti Semitic. And he tried to cast Fuentes and Carlson as primarily critiquing the state of Israel, which is hard to say for Fuentes, certainly for Carlson to more or less at a universal sense. I don't know if there's specific comments he thought he was responding to. You can't really tell that from what Roberts is saying, although I haven't gone back to watch the Carlson interview, if I'm being honest, but from readouts of it, I understand. And then he's essentially saying people who try and use that divisiveness are the enemy. So he's making a point saying, hey, it's people who lump anti Semitism and critique of Israel in. He's trying to divide those two and put Carlson and Fuentes in the ladder. The irony is that this is kind of the opposite move. Heritage has been playing with folks on the left for a long time. Remember, Heritage is the founders of the project. Esther. Right. Which is kind of this strategy. I think it formed a lot of what the Trump administration has been doing to target people, pro Palestinian networks of which I think we should acknowledge there is an anti Semitic vein that often weaves itself through there, but along with many other veins that I think can be readily separated from that, but describes it. I'm taking this from the top line of the summary. This is literally the first line of the summary to the report. From late 2024, this project released Americans virulently anti Israel, anti Zionist and anti American, pro Palestinian movement, quote, unquote, is part of a global Hamas support network that is trying to compel the US Government to abandon its long standing support for Israel. So Heritage is switching the game on this, and I think it's really telling that they are trying to do that now, albeit a little unsuccessfully. And it's, it's, it mirrors something, a difficult conversation that sometimes happens on the left too, although somewhat with lower stakes, I think, for the reason that you describe. Alan. Ben, how do you react to this? Am I onto something here? Does this strike you as like a weird shift in how at least this prominent element of the conservative movement is thinking and talking about this stuff?

[Benjamin Wittes]

Yes, absolutely. But it's a grave they dug for themselves, frankly. So the first thing that people who are not steeped in this stuff need to understand is that antisemitism is not political. There is such a thing as political antisemitism, but there is no thing, there's no ideological thing in all of American political debate that is as old as antisemitism. Racism. Johnny come lately, right? That's a creature of Spanish and Portuguese and British confrontation with native peoples in various continents. 1500 years. More recent than you know, than antisemitism. Right? Antisemitism is old and it is primal and it exists in all political movements. And the mistake that the conservative movement under Trump made was to declare war on antisemitism as though it is a creature of the left. And sure, there is left antisemitism. Left antisemitism tends to disguise itself as anti Zionism, though. Anti Zionism is legitimate and real and has its own autonomous arguments. If you're a lefty who hates Jews, you tend to. You tend to direct that at Israel. You tend to think of it in terms of just not minding Hamas very much. Right? This is not the right wing version. The right wing version is more about just hating Jews. And it's as Alan described.

[Alan Rosenstein]

I mean, have you met any of us?

[Benjamin Wittes]

I mean, I mean, we are contemptible. And, and so what happens is the Trumpies, the Project 2025 Project Esther crowd thinks you can lop on to and adopt as a kind of ideological position. Anti anti Semitism, meaning you'll go after the left because they're pro Hamas to the extent that some of them are. You go after universities, you. It's a good way of yelling about, you know, post colonialist ideology, right? And then you have this inconvenient fact that it's not the left camp that houses Tucker Carlson or Nick Fuentes, right? And you suddenly realize that there are a bunch of people who have really kind, old, traditional, undisguised, fangs bared, anti Semitic attitudes. And, you know, Fuentes is particularly noxious in this regard. But, but Tucker Carlson's no picnic himself. And, you know, he talks about Jews in ways that, you know, did not until quite recently were just not respectable in mainstream modern American society. And that Tucker Carlson of 15 years ago would never have d talk. And so you realize, as the Heritage foundation, that you've created a house in which you actually can't live because there are too many of the people who you've declared to be rats and pests and vermin right inside your own house. And then you have to defend them because you don't actually have a neutral principle here like that antisemitism is bad. What you have have is that your side is right and fights against anti Semitism, by which you mean fights against the anti Semit, the particular varieties of it that are anti Semitisms of the left. And there is one group of people who really, really should know better than to fall for this shit, and that's Jews. And the remarkable thing about the last few years of the debate about antisemitism is how many Jews sign up for one side or another and say, yeah, like the problem is the, is the anti Semitism of the left or the problem is the antisemitism of the right. And you know, the, the truth of the matter is that if you look at anti Jewish violence around the country, it is pretty distributed. Sometimes people who attack synagogues are people who just hate Israel and cannot distinguish from a left point of view and cannot distinguish between their local Jews and the Israeli government. And sometimes they are neo Nazis. And you would be surprised how diverse the population of people who really hate Jews is. And so, like, the, the thing that mystifies me about all of this is how unsophisticated Jews are about the antisemitism and the politics of it. And, you know, a Native American friend of mine once said to me about, I promise this is relevant about state borders and Canadian and Mexican borders in relation to tribal identity. Your political borders don't map onto our reality. And that's how I feel about antisemitism. You know, your politics, America, left, right, center, you know, Gruper, you know, Free Palestine. Your politics do not map onto a 3,500-year-old Jewish reality. And if you want to understand antisemitism, you gotta start in ancient Greek.

[Alan Rosenstein]

I feel like every Jew should have next to their mezuzah, a horseshoe just to remind them of the reality of politics, which is that to be a Diaspora Jew, right? I'm not talking to be a Jew. In Israel, they can pick whatever politics they want. And I don't think Judaism is naturally a quote, unquote, liberal religion. It's an Old Testament. If you read the Old Testament, that's quite a book. But Diaspora Judaism needs liberalism, small L liberalism, right? Because that's in the middle of the horseshoe. And if there's, you know, the ends of the horseshoe meet and it's very ugly. And I will say to your point, Ben, about kind of the most annoying thing about this being the sort of naivete of so many Jews. Right Again, some on the left, some on the right, you know, so I mentioned this bunch of times over the years, right. My parents are Soviet Jewish refugees or they came in the 70s and 80s and a lot of their friends came in the 90s. And so, like a lot of the family friends that I grew up with. Right.

[Scott R. Anderson]

Are you.

[Alan Rosenstein]

Are these sort of former Soviet, former Russian Jews and the number of them that have become Trump supporters in the last family friends in the last few years. And look, you're allowed to become a Trump supporter for whatever reason. Fine. Okay. Right. But the specific reason that they were worried about anti Semitism on college campuses, it's fine to worry about. You can worry about anti Semitism on college campuses. You can be worried about that. Totally fine. I'm worried about that. Right. But to throw your lot in with these blood and soil nationalists, like, how do you think this ends well for Jews? Right. Which is, by the way, not the only important question in American life. But even if it's the only thing you care about, this does not end well for Jews.

[Kate Clonick]

I mean, I've been sitting here, as always, and Ben knows this and Alan knows, as the non Jew and as the kind of the one who's kind of ignorant, a lot of people, if.

[Alan Rosenstein]

You work for Lawfare, you're honorary.

[Kate Clonick]

Scott Anderson is like, what are you, like Swedish or something? So I'm like, that's.

[Alan Rosenstein]

I have never met anyone more Jewish than Scott R. Anderson. And I assume that R stands for Rizdal or something like that.

[Kate Clonick]

But I just want to, like, I just got to say that, like, this has been, as an outsider kind of looking at this and watching this debate, to go take it back to the Carlson kind of moment in the heritage moment, I've got to say, like, nothing. I'm like, what, what was, what, what did they think was would happen? Like, what, what did. Like, there's nothing. It's kind of where you started out, Alan, which was like, I'm like, okay, so like, am I missing something here? Like, this is just an inevitability. There was always going to be. MAGA had a insane white nationalist faction. Like, that was like, like a huge part of it. And then there was the Jewish son in law of like the president and all of the people that he represented and the people that he brought in under the MAGA tent in that capacity. And somehow because of Donald Trump's like, insanity, kind of like his bringing people together under kind of this banner of something making America great again, which also people read as making Israel great again, like, basically brought these two things together. And then the war happened in 2023 and there was this conflation of like this, I thought, like kind of a rapid collapse of like being anti Israel is anti Semitic and this kind of thing. And I was like, this is just not going to. This isn't going to end well. Like, this Is not like there's like, there's just like an inevitable point, as you said. It's like on the horseshoe that they're just going to be under the tent together and suddenly Nick Fuentes is going to be sitting next to somebody like a yarmulke and there is like. And he's gonna be eating like pork ribs and the guy next to him is gonna be, you know, there's no way. There's no way. And so like, I guess it's weird for me that it was Tucker, but also not that weird because geez, what is like, what is reality anymore anyways? But like, to me this is just kind of like also, I don't know who Alan, you were calling the woke. Right. But like, you know, the white nationalists are like the ultimate, the ultimate policers of identity politics.

[Alan Rosenstein]

Exactly.

[Scott R. Anderson]

And cancelers. That's the other irony of this.

[Alan Rosenstein]

Well, that's why calling the woke right is so endlessly entertaining because they lose their mind because that doesn't match their lived experience. I mean, the jokes, I mean, it just runs it. The right side runs it.

[Kate Clonick]

I mean, totally. I mean it just kind of like, you know when you remind people that actually the KKK and things like that used to be like not just anti Jewish but anti Catholic, people are like, what? Like it was, you know, there is like, there is not this understanding that about how much that is like a policed police nonsensical space that has its own like kind of crazy man definitions. And so anyways, I just, I love Ben's speech about how anti Semitism doesn't have politics. I think it's completely right. I don't think I've ever heard such a great line spontaneously. Alan is someone should have a horseshoe.

[Alan Rosenstein]

It just, it just came to me in a flash of his brain. But I do, I do quite like it.

[Kate Clonick]

But anyways, I just like, you know, this just to me the really interesting part again is just that this is bubbled up. This is like somehow made it into. Into that the. That we. Whether we know that this is happening. I always go to like the New York Post or whatever and like I'm kind of like, oh, interesting. They're taking a side. That's weird. Like, you know, like literally like the New York Post go to is to make some random crime against a young white girl like the COVID of like the news for X number of weeks until the scandal passes on Trump or the scandal passes on the left or on the right of some other right wing figure. And right now it's Kind of like acknowledging it. And I'm like, oh, that's, that's weird that they're acknowledging the infighting.

[Scott R. Anderson]

Well, and I think the timing may not be total coincidence. I'm wondering if this is in place where Alan and Ben and UK may disagree with me. But I think it reflects a little bit of an intellectual shift that has been quietly happening and that actually has hit like a bit of a tipping point in the last few weeks, particularly around the Trump administration, where we see the Trump administration historically exceptionally supportive of Israel, and particularly the most kind of nationalist vision of Israel occupying the west bank, annexing the west bank, excuse me, making broad territorial claims, embracing the fact that there will never be either equal citizenship for Palestinians nor Palestinian state. That vision of Israeli politics very live still the dominant vision of the current coalition. Coalition, although who knows much how long he'll be with us in Israel. Close allies of the Trump administration all through Trump 1, still close, Trump 2, but noticeably more tension. And in the last two or three months we have seen a lot more of a divide right between the Trump administration and the Netanyahu administration. That whole political movement they represent in Israel. It's a very quiet tension because Trump is very popular in Israel. You see a lot of people who really support him, still believe in him, have faith in Netanyahu, has avoided any sort of public break. We get lots of reports about infighting, and you look at the terms of the ceasefire that the Trump administration so far is still trying to impose with very mixed success. It's very contrary to what the Netanyahu government wanted and said they wanted going in. I'm wondering if you don't see a moment here where people who are critical of the posture towards Israel, which has been a mainstay of conservative, particularly maga, foreign policy for the last eight years or so, or a little bit longer, and put in conservative foreign policy longer than that. Don't see an opening where they're trying to wedge in. And that's actually a big deal, not just because of the ceasefire deal, but also because, of course, we have the renewal of the US security support for Israel coming up in the next few years that I think a lot of people expect there to be a real clinch down on by the Trump administration because of its generally hostile attitude towards foreign assistance. Am I off on that? This just strikes me as maybe a little bit of a tremor that has gone off because there is actually a broader, with political significance shift, not just about anti Semitism, but also about the potential posture towards Israel. And that mirrors A shift that's happening on the left where we've seen the left actually be much more unified and being willing to openly criticize Israel in a way that 20 years ago, even on the left really didn't happen, except in far circles of the left, but on the establishment left was really not a thing. Much more common today, even in Democratic Party platforms the last few cycles.

[Alan Rosenstein]

Yeah, absolutely. I mean, look, I think one of the reasons why people have been freaking out so much about the Fuentes Tucker heritage thing, in addition to the fact that it is actually grotesque. Right. And you're allowed to freak out on the merits, is because I think a lot of conservatives, whether they're conservative pro Israeli Jews or they're just conservative pro Israelis who are not Jews, are realizing that the support for Israel is weakening. And it is weakening, you know, not just because of anti Semitism, but because Israel's conduct over the last year or two with respect to the war in Gaza has alienated a lot of Americans. It has, in particular, alienated a lot of American young people. And it has alienated American young people, not just on the left, but also on the right. And so I feel like part of the concern here is that we must push back against Tucker and Fuentes, not only because they are grotesque and awful, but because we are increasingly feeling uncertain about our own position. And also, by the way, Trump's support for Israel is, as with all things purely transactional and very fragile and at any moment could reverse. Right. If it becomes inconvenient for him. Right. And it is notable, I think, that Trump is not wading into this. He is not using his power as head of the party and head of the MAGA movement to try to intervene, because he knows that gruppers might be a useful part of his coalition, and, you know, he wants to make space for them, just as he refused to, you know, condemn the Jews will not replace us people in Charlottesville. And one thing that's unfortunate about the Fuentes Tucker thing is that it is. I'm not sure distracting is the right word, because it is itself a very important issue, but it is taking out all the oxygen from the room such that it is very difficult to then have a more normal conversation about the merits or demerits or whatever it is of Israel's actions, both generally and with respect to the war in Gaza and how that may or may not be affecting support in the Republican Party and among young people.

[Benjamin Wittes]

So I actually disagree with you about this, Scott. I think the structure of the maga, blood and soil Nationalist Israel alliance is very strong. And the tolerance for antisemitism among the Israeli leadership, at least the Netanyahu government and its progeny on the Israeli right will be very near infinite. And the reason for it is that unlike in the 1940s, Jews do not spend a lot of time, or Israeli Jews anyway do not spend a lot of time fearing white nationalist Jew hatred. They spend a lot of time fearing Arab nationalist Jew hatred and Islamic fundamentalist Jew hatred. It is not gruppers who conducted October 7th. And so the willingness of the Israeli right and some other components of Israeli society actually to say, we will do business with the Viktor Orban's of the world, we will do business with the, you know, the Polish, you know, law and justice people. We will do business with Donald Trump because there are easy transactional relationships they will support. Israeli nationalism is almost infinite. Now then you say, ah, but Trump just forced down Netanyahu's throat a deal that is very close to the deal that Biden wanted to get nine months earlier. And fair enough, and to which Netanyahu would say, yeah, but I bought nine months by having Trump and I killed a lot of Hamas guys in those nine months and I stayed out of prison. And oh, by the way, I am no worse off for dealing with Trump than I was. And so at the transactional level, they're not wrong to think they do better with the blood and soil nationalists than they do with, you know, human rights oriented center lefties and, and center righties. And so I, I, I actually think the structure of this relationship is pretty stable and it will take a lot more than a few Nick Fuentes and Kevin Roberts's to disrupt it. To which I say, you know, see earlier, I can't believe the naivete of Jews and including in this the Israeli government that, you know, in the long run you do not have a relationship with the United States if you have a relationship with one political, political party. And the they have, in the name of this relationship with maga, they have destroyed the Israel America relationship as we've known it for 50 years. And that was predicated on a much more widespread sense of values commonality between Americans and Israelis. And that is just gone now for all the reasons that Alan said, at least among people below a certain age. And so I think it's very foolish. But I'm not sure that it's unstable in the way that you describe.

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[Sponsor Voice 3]

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[Benjamin Wittes]

Them to set up.

[Alan Rosenstein]

I mean rose petals.

[Benjamin Wittes]

Can things take time with with nice like frilly lace and stuff. And yet.

[Scott R. Anderson]

And yet here we are. But it is a convenient moment to reflect not just on the TikTok deal, but also what the absence of a deal. But the promises of it tell us about this whole saga that we are now coming up on the year anniversary of the enactment of the TikTok law Pifaca. Now, Alan, nobody's followed this matter more closely than you, so talk to us a little bit about some of your reflections, some of what you shared in lawfare about what this moment tells us and how this fits into it.

[Kate Clonick]

Yeah, Alan, tell us.

[Scott R. Anderson]

Yeah, I don't want to invite Kate to do a little bit of a victory lap.

[Alan Rosenstein]

I don't know what I did in a pre I was like a very poorly behaved cockroach in a previous life to have earned the TikTok beat. I was so naive when I first started writing pieces of it.

[Benjamin Wittes]

It's because you didn't have a horseshoe hanging next to your mezuzah.

[Alan Rosenstein]

So look, I will just say so one of my this is I promise this is relevant. So one of my favorite jokes Is that a chicken company, a chicken processor, decides it needs a better process for plucking chickens, and so it invites an engineer, a chemist, and a theoretical physicist to come and present. And the engineer comes, and he outlines this very complicated Rube Goldberg machine that, like, plucks chickens and stuff. And the chemist comes, and he has this vial of bubbly green stuff that dissolves feathers but leaves the chicken otherwise intact. And the. The physicist stands up, goes to the whiteboard, and starts writing, assume a spherical chicken in a frictionless vacuum. I love that joke. It applies well to legal theorists as well. But the point is that when you're doing policy analysis, you can't just evaluate the policy on the merits. You have to actually think about how will it be implemented by the institutions that you have. You go to war with the institutions you have, not the institutions you want. There's a whole field of public choice in economics and political scientists that studies this. And as I've been reflecting on the TikTok law, and I've been writing about it for more than a year now, mostly for Lawford, but also in other places, I think I still stand by my legal analysis and even my policy analysis of the law. Narrowly construed. Right. I always thought it was constitutional. At the end of the day, 12 United States judges, nine Supreme Court justices, and three D.C. judges agree that was constitutional. I still think TikTok had real national security threats on both the data security and the algorithmic manipulation. I think that's true. But the thing that I completely screwed up, like, man, did I miss this. It never even occurred to me, actually, and I will not make the same mistake again, is how badly the implementation could go right now. I was writing about this, I guess started in 2020, kind of early 2024. I kind of still thought that the Democrats would win, but I thought, okay, even if the Democrats lose to. I mean, Trump did try to ban TikTok in his first term, so he's not gonna really do anything to stop this law. And the law is very cleverly written, after all, because it doesn't really require the executive to do anything. It mostly just uses other American companies and the threats of liability as leverage. And I was just wrong in every single respect on how the law would be implemented. Like, incredibly wrong. Right. I did not appreciate that the President would come in and just refuse to enforce it. I did not appreciate that Congress, after, like, you know, bipartisan vote and these classified meetings, and it's like the worst threat ever, would say, oh, we passed that thing. I actually don't want to talk about that anymore. Right. Let's not ask why the President isn't enforcing this. And the thing that I really did not appreciate. Right. Was it just never occurred to me in a million years that companies like Oracle and Apple and Google would agree to violate the law and take on nearly a trillion dollars of liability based on. I mean, in Oracle's case, literally nothing. Literally a call from not even the Trump administration. It was still the Trump campaign on January 19, right. When the law went into effect and Oracle brought TikTok back online. And then for Google and Apple, I mean, they at least waited until they got those idiotic Bondi letters that said nothing. But either way, to me, the real lesson of the TikTok saga and just a learning for me, like, I failed. I just failed as a policy analyst. Like, you're not allowed to say, well, it never occurred to me that the institutions would fail. No, no. That's what I'm paid to figure out.

[Scott R. Anderson]

Right?

[Alan Rosenstein]

Like, that's part of my job. It just never occurred to me. And so those are my lessons learned. Right? Which is a policy is worth shit if your institutions can't execute it. And I won't make that same mistake again.

[Kate Clonick]

Okay, so that was.

[Alan Rosenstein]

But, Kate, what do you think?

[Kate Clonick]

Okay, so I'm gonna. I want to give you a little bit more credit. So here's the credit that I'm gonna give you. 1. I thought that you were right, and I was totally wrong. We disagreed about this from the very beginning. I loved your analysis, but I thought it was completely incorrect. As the TikTok case started on the First Amendment ground.

[Alan Rosenstein]

Yeah, the legal analysis.

[Kate Clonick]

The legal analysis. I thought you were totally off about. I thought that there would just. I just thought that the First Amendment would hold up more than it did and that this. That the national security pretext would be more obvious to the justices. I thought that this was just going to have. That was going to have a lot more sway. And I was shocked. I mean, in my defense, I don't think that I was alone. Like, a lot of. Like a lot of First Amendment intelligence tech scholars thought that, were surprised by how that went, but you were correct. They used the. The justices from the circuit court to the Supreme Court, you were completely, completely taken by the. By the justification for the national security concerns around this that I thought and still think were bullshit. So. So I really think you have to give yourself kind of credit for that. The second thing that you're beating yourself up about, I want to say, is like a much Broader point and not about the TikTok lot, which is just, you know, we have had this unprecedented moment in which no one anticipated that we would have kind of the levels of corruption and the levels of not just like in our institutions, but just the pure, just like non adherence to the law in like all of these different ways. And so there was like, there is no, there was no path. Like you would have, I mean, in fact, everyone would have thought you were completely batshit. And maybe you, you would have been you. If you didn't have tenure. You would, it would be up for review again if you had argued in 2024, you know, before all of this happened, that like what was really going to happen was now that the law was just going to get ignored and stuck in a drawer. That despite all of the fines that were the hundreds of millions of fines that can still, as far as I.

[Alan Rosenstein]

Know, hundreds of hundreds of hundreds of.

[Kate Clonick]

Billions of fines that can, as far as I can tell, can still be retroactively, like retroactively enforced against these companies by a new administration. Just FYI, like that all of these things. I mean, so I just don't like, I enjoy listening to you to say how wrong you were. You can do that as much as you want.

[Alan Rosenstein]

But I'll send you a voicemail.

[Kate Clonick]

Yeah, this is great. So I'll just start my day with this. But this is like, I do think that this was a sui generis moment in time, I think. And I mean I'm kind of like, I always kind of like take moments like this. But like I think that this is just actually has gotten less attention than it deserves for the very basic constitutional rule of, of law and institutional collapse that it represents because like all of these administrative institutions always kind of thin. We've argued about this shit forever. There's all kinds of stuff about the unitary executive and the independence of the administration of like the administrative state and how all of this works. And so like the collapse of those under the weight of the presidency is like fairly, fairly kind of established. The collapse of the judiciary under like after years of FedSoc appointments and everything else under the weight of this administration also maybe like kind of like kind of foreseeable over the last number of years, but like just deciding to throw out laws that Congress made like by sticking them in a drawer and making sweetheart deals with the, with the DOJ and like, right, having the, like the Attorney General write a letter like, like a, you know, Larry Ellison, you can stay home from school today letter like about the TikTok law is just like, absolutely, it's bonkers. And that is just like the. One of the most fundamental, like Schoolhouse Rock parts of, like our, of our entire legal system. And I can't believe it hasn't been a bigger deal that we just ignored an act of Congress.

[Benjamin Wittes]

Yeah. I just want to add to this that it is not the job of a policy analyst or to say, assume that the entire system fails to work. And when we do policy analysis, we are always operating within a certain set of understandings of the way the system works. And usually in the United States, the law, Capital T, capital L is one of those parameters that you say, well, okay, there'll be interpretive give in how they understand blood, but they're not going to take the oh, fuck it, just violate it approach to the law when they're, say, major companies with a lot of shareholders or, you know, the executive branch administration and Congress would do something to prevent that. And I don't. I think once you dispense with that, the universe of possible policy becomes infinite because you've taken away all the constraints on it and you're basically dealing with a warlord culture. And I don't think it's Quite fair to 2023 and 2024, Alan Rosenstein to have said, you know, he was supposed to expect that we'd be in kind of Mad Max land by now. And, you know, the last thing on anybody's mind in Mad Max land is the TikTok ban. And so I think you're being a.

[Sponsor Voice 3]

Little hard on yourself.

[Benjamin Wittes]

As much as I schadenfreude with Kate on.

[Alan Rosenstein]

I'm just doing that to guilt you all to be nice to me. That's the key. You got to come in really negative on yourself because then, then, then Kate's like, oh, man, I gotta be nice to this guy. He's so pathetic.

[Kate Clonick]

To Ben's point, I think it's like the equivalent of exactly that. I think it's the equivalent of like being like, oh, the thing that I didn't foresee about this game of risk that I am playing is the dog that would come into the room and knock the entire board off the table with its tail. Like, that is like, you know, like, this is just not. This is not in the. The realm of. Of foreseeability, Alan. So I think that like. And like, maybe it was, but, like, it's not an interesting prediction. And so because it's so kind of absolutely mercurial and subject to chance. And so I think that that is. I don't. You Know, I think that that's kind of what I would go a little easy on yourself, though.

[Scott R. Anderson]

Yeah. The one part of this I go back to, which I feel like we've come back to every time we've talked about this on the podcast, Alan, is that moment in January, like, like 14th through 19th, 2025, the week before the ban went into effect, which I think was on the 19th, I think the day before Trump sworn in, where everyone on Capitol Hill, particularly Democrats, freaked out and tried to pass a bill to extend it and were basically stopped by Mitch McConnell because he was a big backer of this bill. You know, the exiting Senate majority leader at that point, I guess, not majority leader at the point, but like Senate Republican leader. It was this moment where clearly the political backbone to do what the law said was gone. Where it existed was in corners of Trump's own party. And the takeaway I take from this is it underscores that in the Trump administration, I don't think the law doesn't matter. I think it does still. But the Trump administration is constrained only insofar as it actually gets institutional pushback, not just on the good faith norms and the unenforceable constitutional values as right founders may be that have driven past presidential administrations. And so in that context, I look back and I agree. I don't think I would have seen this happening at the same time, but it's a lot easier to see how you see this fact pattern come about. The real question, I think then becomes a what if Congress hadn't lost its spine on this? What if, if there were still a colorable majority in some corner of Congress, which there really isn't at this point, that still wanted to see a law like this get passed and the Trump administration were doing it in the face of this, would these companies have bought into this? Or what if this were happening in 2027 where Trump was just a year out? I think the fact that this is happening at the very beginning of Trump's administration and the fact that you had a complete collapse of political support for this ban really is a driver of, of the political dynamics that allowed for this to happen and particularly allowed the companies to buy into it, which I think is the essential element that I wouldn't have seen coming because it is such a clear nonsense legal argument about why they're not subject to these fines. But am I. Is that being too, too generous to you, Alan?

[Alan Rosenstein]

I actually. No, no. I actually take you of being, of being less generous than Kate and Ben and trying to explain why this Might have, in parts, been foreseeable. And no, I think you're diagnosing the situation. I think you're diagnosing the situation correctly. I think, to me, the question is, what do we do going forward as policy and legal analysts? I think in retrospect, it occurs to me now in this conversation that this is how I should have actually ended the piece. Not just what I got wrong, but what this means going forward. Because I think, to Ben's point, it's very hard to be a legal analyst, the legal animist. I do like that, though, a legal analyst. If the law doesn't apply anymore, like, I sometimes talk to, like, political science friends, and they'll be like, oh, what's gonna happen here and there when the Supreme Court does this? And I'm like, guys, you're basically asking what happens when the law breaks? You're the political scientist. You tell me. I'm just the umpire of the game. But if the players decide to start, like, hitting each other over the head with, like, bats and knives, like, you don't even. I'm just a guy. I'm no longer the umpire. I'm just some guy, right? And so I think that, to me, the. The kind of most depressing thing about this is going forward, it kind of fills with a kind of nihilism, right? Because all of my fancy legal education is only useful insofar as it exists within a structure of the law. And if that's not even useful for.

[Benjamin Wittes]

That anymore, because ChatGPT is going to.

[Alan Rosenstein]

Do that for you, I guess you're.

[Benjamin Wittes]

Sort of screwed either way.

[Alan Rosenstein]

I'm just some guy, right? And let's be clear, I don't have a lot of skills. Just end it with.

[Scott R. Anderson]

You should see this man swing a hammer.

[Benjamin Wittes]

We know.

[Scott R. Anderson]

Well, speaking of some questionable legal arguments being deployed by some lawyers out there, let us turn to our third topic with our remaining time. And this is the question of the increasingly central role that some familiar terms to national security lawyers of a certain generation are intimately familiar with.

[Alan Rosenstein]

OG Lawfare, one might say. OG law this site used to actually, actually be about.

[Scott R. Anderson]

Exactly. I mean, it is. It's weird. It's a weird year to be a national security lawyer. Like, as somebody who studied this stuff when it was fairly obscure, you know, 15 years ago when I was in law school, it's crazy to think that the Supreme Court's about to rule on the Insurrection. Well, not quite the Insurrection act, on domestic military deployments and the use of IPA in unprecedented contexts. And, like, what it means to be a national emergency. And then we have things like this, which is the return of these terms that really haven't been used prevalently in like a decade, at least in new ways, like unlawful enemy combatant and the creation of new terrorist designation regimes. The fact that these terrorist groups are being called DTOs, designated terrorist organizations, I'm assuming not a designation that exists, but there was a period where we were making up new terrorist designations kind of every week, and particularly we saw here now Pete Hegseth saying quite expressly in his most recent statement on the most recent strike, or maybe I think it was actually one strike ago at the, at this point, saying we're going to treat these people just like we treat al Qaeda, trying to draw these really clear parallels, saying this is global war on terrorism 2.0 that we're engaging in. And I was asked so the reason I want to talk about this topic is I got asked to come on NPR this past weekend and talk about this, which I did, which I really appreciate them having me on. And I both thought it was interesting to have the substantive conversation about what it means specifically in that context when they say things like unlawful enemy combatant to describe the people who survived these strikes and were brought on a ship and detained. But also in my mind, a point that I kind of tried to write home and they were kind enough to include in the radio segment that ended up airing. This idea that I think this is all just a, just a feint. Like this is a rhetorical move by the administration that has less legal import than cultural import. It is a, it's a distraction. It's camouflage. And Ben, no one's followed this stuff more closely than you have over the last 25 or 30 years. We've been living with it.

[Alan Rosenstein]

Call Benjamin Wittis older than calling Benjamin is old.

[Scott R. Anderson]

We've all been living with 25 or 30 years. I've been around. I mean, I've been aware of it, but I was living with it. So I've been, I mean, tell me, I don't know. If you listen to the radio segment, I'm not offended if you're not. But. But, you know, my basic take is that I think a lot of this is just window dressing. I think there's less substantive import to it. It doesn't mean that they're not substantive import that they're, they're deploying these terms, but the reason they're doing it is about trying to, to guys from people what it is they're doing to make it look more normal than it is. Am I off on that or what do you. Why do you think they keep turning to this global war on terrorism rhetoric to describe what they're doing?

[Benjamin Wittes]

Well, so I think some of it is window dressing, as you say, but some of it's worse than window dressing. Some of it is bullshit. For example, the idea that you can conduct kinetic strikes against members of an organization because you have designated that organization as a terrorist organization is gibberish. It's not window dressing. The. The reason we can hit Al Qaeda lawfully is not that Al Qaeda is a designated foreign terrorist organization. That's the reason we can prosecute people for giving money to Al Qaeda. The reason we can hit Al Qaeda lawfully is that Congress passed an authorization to use military force against Al Qaeda and declared us to be in an armed conflict with Al Qaeda. And the international community, though it regrets it in retrospect, recognized that. And, and we have relied on that. And nothing remotely like that exists in this context. This is a set of rhetorical games that would be merely stupid and kind of juvenile, except that it does involve killing people. And so if I sound a little bit repulsed by the whole thing, honestly, it's because I am. And I want to explain my sense of revulsion at it. So throughout the second Bush administration, the Obama and the Obama administration, so it's really 12 years I spent time saying and arguing with people and in good faith that there are strong steps you need to take, because this threat is very real, and some of those steps are really unpleasant, and they have civil liberties implications and we hate them, and yet the law has to tolerate it anyway, and we have to build legal structures for that. And I resisted the idea that there was a slippery slope because kind of like Alan and Tick Tock, I did not say, well, you know, the next administration is going to come in and the dogtail is going to hit the risk board, and we're going to be in a completely different universe. And actually, the first Trump administration didn't do that. The first Trump administration did some things that I'm not thrilled, wasn't thrilled about, but they were. Were mostly coloring roughly within the lines in, in these areas. And it turns out that slippery slope was the wrong metaphor. It's not that we slid our way down a slippery slope. We literally jumped out a window. And I, you know, as somebody who made arguments for a lot of these authorities, really resisting the idea that you, you could use them in good faith against, you know, domestic targets. And let's, let's face it, these domestic deployments are about using, you know, calling Antifa a terrorist organization and using that to justify domestic military deployments. That is, you know, a domestic application of something that I really didn't believe had domestic applications. So I'm no fan of trend. I'm not, you know, I've not. Not got a brief for them. But I don't believe in killing people randomly who you could arrest. We have an entire organization of the US Quasi military called the Coast Guard, whose job it is to stop small boats coming across the Caribbean Sea and elsewhere carrying drugs. We have tools for this problem. And the leap to apply these metaphors and legal concepts that were developed for really exigent circumstances, truly, truly difficult circumstances, halfway around the world for no good reason except to thump your chest and, you know, and show how big your Kahones are. I really find it emotional, at a very emotional level, repulsive. And it makes me feel awkward about a lot of. I still don't know what we were supposed to have done about Anwar al Awlaki. So I'm not repenting positions that I took in that period, but it makes me really wonder, did we inadvertently set the stage for this, or is this a situation where, you know, the guy was going to use whatever metaphor was convenient. He happens to have used one that is of a high emotional valence to me, but if he didn't have access to that one, he would have used something else. And so it actually doesn't. Because Scott. Scott's right. It doesn't really have that much substantive content. It's really just a set of window dressings and talking points. But it's really talking points that make me, given my own history with this subject, which by the way, includes founding warfare. You know, like Lover is an outgrowth of my work in this period on this set of subjects. And it makes me very uncomfortable. Uncomfortable and in a. Not just in a. Just in a sense that, like, it makes me wonder if a lot of what I did and thought and believed was counterproductive and was paving the way for. To authoritarianism.

[Alan Rosenstein]

I mean, it is. It is. It is the structural similarity between the way you're thinking about this issue and me on TikTok, it's. It's remarkable. Right? Like there. I just think there can be so many examples of the. Well, unfortunately, the dog did come in and. And swipe the. The risk board, except.

[Benjamin Wittes]

No, but there's a big difference, which is that TikTok is lawlessness that doesn't kill people. And this is lawlessness at the. At the central core of authoritarianism, which is the ability to kill people with impunity. And the moment you apply the same kind of lawlessness that you do with TikTok, that which is really about who gets to keep large pots of money. And the stakes there are really big. If you have a large pot of money or if you have a phone and you want to use TikTok or not use TikTok, whatever. But this is life and death. And I do think that that's different. And more important to the authoritarian project is the ability to threaten people with killing them.

[Alan Rosenstein]

All right, So I do. Before we close out, I do want to kind of step back for a second because I would just like someone, and maybe Scott, as our international law guy, you can explain to me what is the status of our current, like, military engagements in this domain. Like, as far as I can tell, we're bombing random fishing boats that seems illegal. We're maybe going to invade Venezuela. I think we might be invading Nigeria next. And of course, we're like 100% going to invade Canada any moment. I'm just. And I'm asking this kind of in a funny way, but I have legitimately, and I'm like, I'm a reasonably sophisticated legal observer. I like to think I have utterly lost the plot on what it is that we are doing right now. Please someone explain this to me.

[Scott R. Anderson]

So, you know, the campaign that's active, most directly relevant to the rhetoric we're hearing is targeting these drug boats in the Caribbean and now in the eastern Pacific as well. And this is where we see this terrorism rhetoric really come out, right? Like, this is the focus of what they're doing doing. And the part that I think are strange, I think it's got kind of like three purposes that we're hearing, right? Like, one of it maybe is actually describing legally what they think of the status of these people as. So when they say things like unlawful enemy combatant, they're implying both that they're in an armed conflict with these terrorist groups, which is, we know, part of their legal argument. Although for reasons I wrote about after the first strike, it's a bad legal argument that has a lot of problems. That's the argument they're advancing. And then they're implying, well, unlawful unmate combatants. And that's what we call people after 9, 11 when we try to detain them indefinitely, prosecute them for their conduct and hostilities, and engage in various conduct that could have arguably and I think did violate various protections that POW usually get under the Geneva Conventions. There are elements of that argument still survive in US legal interpretations today, although there's a lot of barriers to going all the way back to that sort of vision. But the key point of it is maybe there's some legal substance in there. When you're using that rhetoric, you're actually doing two other things. Right. Right. You're saying a, this is the same thing as we did right after 2001 in the terrorist acts. And it's absolutely not. You don't have an aumf. You have no congressional authorization. That matters a lot from a legal perspective, which you did in that case. And by the way, after 9 11, you were actually attacked by an organization that killed Americans through very conventional violence, through something that looked a lot like an armed attack, which is supposed to be both international law and usually under constitutional law. That the sort of thing that we respond to with military force, that doesn't exist here. That's the real difference. Like here, these are people who are doing things that are harmful to Americans, undoubtedly, but very indirectly through very attenuated routes, and not the sort of thing we use violence against. And by calling them terrorists, by using these sorts of lumpens, they're really trying to say what we're doing now is exactly what we did after 9 11. Exactly. We've been doing the last 25 years. And it's just not true. And this is like my concern, I think, is the more people spend time engaging with these legal arguments saying, well, what if they are terrorist groups? What does that matter? Buying into these terrorist designations that again, this administration is mostly fabricated, like they call them DTOs because the FTO SDGT designation they've applied actually don't do anything useful to them. They're about economic sanctions and terrorism. Prosecution have nothing to do with the use of force. Their camouflage. You make it look like a counterterrorism operation and hoping nobody questions you when you know the underlying foundation is there. And then part of on top of that is also it's camp. They want to look tough because they're saying they think the toughest America has ever been was right after 911 attacks. And they want to go back to that, that unburdened power lethality Pegseth's always talking about. And it's this camp vision.

[Benjamin Wittes]

And you know that as long as you don't accidentally kill an American, no one will have standing to challenge it. And so the bullshit which you can get away with in the public arena apparently, but you couldn't get away with in court actually doesn't have a mechanism.

[Scott R. Anderson]

To be called exactly, exactly right until you detain someone or you kill an American. And even then. Frankly, in the latter case, I haven't been able to clearly figure out how you would get a case before US courts, although I think there would have to be some sort of range of challenges you can bring in. Well, that brings us to the end of our time together today. Unfortunately, we're going to have lots of opportunity to revisit, particularly that last topic, as well as perhaps that pending invasion of Venezuela that Alan mentioned that we've talked about the last few episodes that may yet be coming forward. But until then, this would not be our security if we did not bring you with some object lessons to ponder over in the week to come till we are back in your podcatcher. Ben, what do you have for us this week?

[Benjamin Wittes]

I have a five word object lesson. I. I have a new projector.

[Alan Rosenstein]

Hey, that is a hell of an object.

[Kate Clonick]

Very nice.

[Benjamin Wittes]

That's all.

[Scott R. Anderson]

That's it. And we'll see with the fruits from that projector.

[Benjamin Wittes]

Come forward.

[Alan Rosenstein]

Tbd.

[Scott R. Anderson]

Tbd. Alan, what did you bring for us this week for your object lesson?

[Alan Rosenstein]

Okay, so I continue down my deep, deep rabbit hole into well written genre fiction. So I think the last time I was on Rat's House, I recommended a book by the fantasy writer Robert Jackson Bennett called the Tainted Cup. It was called the Leviathan Trilogy. Well, he only, goddamn him, only wrote two out of the three books. So I had to go to an earlier trilogy of his and I have been mainlining, I think what it might be an even better trilogy, the Divine Cities. I am almost through the first book, City of Stairs, and it is so good. The thing I love most about his work I realized is the that they're basically spy thrillers with all the political machinations and interesting politics, but in a fantasy setting. And taking that part of the fantasy world very seriously is what I've realized is my favorite part of genre fiction. And it's beautifully written. It continues to be a really good author. He has yet another trilogy after this that I suspect I'll be raving about in 6 months on RAT SEC. So highly recommend City of Stairs by Robert Jackson Bennett.

[Scott R. Anderson]

Ooh, wonderful, wonderful suggestion for my object lesson this week I am bringing you the nerdiest object lesson I've ever brought or shared on rational security. And I'm very proud of that to bring forward today. Folks who listen may know two things about me. I think I've given enough glimpses of it here on the podcast. I both love outer space I think space is really cool. I'm intrigued and obsessed with it. I spent a lot of time reading about it. Weird space technology, the fact that we will all be astronauts perhaps by the end of our natural lifespan. Very exciting for me. And I think it's really, really interesting, particularly this kind of like next 30 years that we're living through where space exploration is coming to the fore for all mankind. One of my favorite shows for that reason. And I also dabble. I don't really have much time to do it these days, but I dabble and enjoy a wide variety of games and that includes tabletop role playing games like Dungeons and Dragons where occasionally you pretend to be a little character and take them through adventures. And I really enjoy that sort of thing. I never get to do it, but I do enjoy it. And these two interests of mine have intersected in a very exciting way in that there is now a new role playing game that's being kick started that is all about astronauts taking the first leaps into outer space and building lunar like habitations and then extending on to Mars. And it's super interesting. It's basically for all mankind if you were to take it and you want to tell your own stories and play your own adventures in this early space era. I'm super excited about it. Seems super interesting. I've read their little preview. It has lots of really interesting nerdy gritty space stuff. If you are like a hard sci fi junkie and very excited about, about learning about space stuff and then maybe telling little stories with it, I think it's great. So I backed it on Kickstarter. Not something I usually do, but I thought I'd check it out and I want you to check it out too. So it's called Pioneer. It's from, I think the company is called Mongoose. Yeah, Mongoose Publishing that also publishes Traveler. I think I like famous sci fi RTTRPG from decades ago and this is kind of like a riff on that, but it's freestanding system. I think it looks super cool. I'm super excited about it. It's extremely nerdy. I will probably not get to play it until my kids are older enough and I can make them play it with me. When that happens, I'm going to be ready and I'm stoked for it. So check it out and if anybody wants to play, you know, drop me a line, let me know. Maybe we'll find a way to do it. Kate with that, now that I've publicly humiliated myself, I hand it over to you. You've been sharing your freakish looking object lesson on camera for the rest of us. What is that?

[Kate Clonick]

I just want to say that you guys all have like these, like, I, you know, these super nerd like that are like, kind of like, oh, I'm so nerdy. But also, I'm sorry. So cool. And because I'm so nerdy and smart. But I just want to say that I've had to sit next to for this entire hour and a half of taping this episode, this giant Romanesco cauliflower that I bought at the farmer's market and just took out of the oven and was before rat sec and was like, oh, I can just bring this for my object lesson to the next, to the next room. And so I did. And it is just beautiful in all its fractal glory. I love.

[Scott R. Anderson]

It is such a weird vegetable.

[Kate Clonick]

It is so gorgeous. It's like, it's just so, so cool. It's like the, you know, it's the, it's the Fibonacci sequence of like the kind of the, like the natural. So it's just so neat. And I just. If you've never seen a Romanesco cauliflower, you should, you should Google it. It's one of the most beautiful vegetables that's ever existed.

[Scott R. Anderson]

I never saw one until like age 27 when I was in a farmer's market in Philadelphia and had like a small freak out in front of some friends because I was like, what the hell is this? Because it looks so unnatural when you look at it because the pattern is so perfectly, like, mathematical. It does not look like it's from this planet Earth, but it is. I'm very curious how you come up with this. So I have made rose I love as a vegetarian. Like, I love big rose heads of cauliflower and broccoli. I do that a lot as like a dramatic mane for like, if I'm having vegetarian guests over or doing a meal for my kids. I've had trouble getting Romanesco right. Because it has this flavor that's like half broccoli, half cauliflower. And it has like a little more like green flavor in it. I don't know how else to describe it. Like a little more of that kind of like slight bitterness and earthiness that I haven't figured out exactly, like, what to pair with. So I'd be curious. Curious what you find of. And if you think you found a good combination, you know, share it with me, send it my way or if read if listeners think you've got got anything? Send it my way about how to prepare because I want to dive back into Romanesco, but after a couple of like mediocre products I went back to regular cauliflower. But I'm not resistant to trying again.

[Kate Clonick]

Okay, I'll let you know how this goes.

[Scott R. Anderson]

Yeah, fingers crossed. Well folks, that brings us to the end of this week's episode. Rational Security is of course a production of Lawfare, so be sure to Visit [e-mail] 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. While you're at it, be sure to follow Lawfare on social media. Wherever you socialize your media. Be sure to leave a rating or review wherever you might be listening. 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 lawfourmedia.org support our audio engineer and producer this week was me of me and our music, as always, was performed by Sophia Yan. We are once again edited by the wonderful Jen Patcha. On behalf of my guests Kate, Ben and Alan, I am Scott R. And Anderson. We'll talk to you next week. Until then, goodbye.

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