Your weekly summary of everything on the site.
Anna Bower, Eric Columbus, and Molly Roberts analyzed former FBI Director James Comey’s motions to dismiss the indictment against him for a post on his Instagram page of seashells arranged to spell out “86 47.” The authors broke down Comey’s motion to dismiss the charges because they lacked a true threat—therefore protecting the speech under the First Amendment—as well as his motion to dismiss based on selective or vindictive prosecution.
Bower, Columbus, and Roberts examined two pretrial motions Comey has filed challenging evidence the government intends to present at trial. The trio explained that in addition to two motions seeking dismissal, Comey is seeking to suppress evidence and an evidentiary hearing under Franks v. Delaware, under which a defendant may be able to challenge the validity of a search warrant based on misrepresentations in the affidavit.
On Lawfare Daily, Natalie Orpett sat down with Roberts, Loren Voss, Renée DiResta, Julia Curlee to discuss potential threats to election security and integrity ahead of the midterms. They spoke about how they are identifying and evaluating the threats, what impact these threats might have, and what, if anything, can be done about them
Dan Maurer, Steven J. Lepper, and Marc Koblentz argued that the military should publicly release Rules for the Use of Force (RuF)—orders that specify when force can be used against civilians during a domestic deployment—to ease alarm about the federal government’s potential use of the military during the midterm elections. The authors compared the generic Standing Rules for the Use of Force with mission-specific rules and ultimately recommended election-specific RuF.
On Lawfare Daily from last week’s Lawfare Live, Benjamin Wittes sat down with Roberts, Bower, Roger Parloff, Columbus and Voss to discuss the D.C. Circuit argument in challenge to the National Guard’s deployment in D.C.; hearings and orders in multiple cases related to Donald Trump’s latest political ads; the temporary restraining order in the administration’s ongoing work at the East Potomac Golf course; and more.
Mary Hampton Mason and Laura Katherine Smith described Nielsen v. Watanabe—an Eighth Amendment case which the Supreme Court will hear in November—and how it could end remedies under Bivens, which allows a federal agent to be sued for violating someone’s constitutional rights. Mason and Smith argued that an end to an already hollowed-out Bivens would be doctrinally sound and necessary for Congress to take action and design real federal constitutional accountability.
On Lawfare Live, on Friday, Oct. 23, at 4 p.m. ET, Wittes sat down with Roberts, Bower, Parloff, and Columbus to discuss developments in litigation against the Trump administration’s policies and more.
Chinmayi Sharma explained that it could be tempting to use a “kill switch” to put an emergency stop to the large quantity of information running through automated immigration enforcement infrastructure. However, immigration enforcement’s interoperability—its ability to share data with different systems—makes it difficult to shut off on all fronts. Sharma recommended that subfederal actors procure more information about these connections, provide citizens with meaningful privacy rights, and use state constitutions to secure them.
Curlee argued that Moscow’s campaign to influence the 2016 presidential election was a major success, with Russia’s largest gains coming after the vote from the president it helped elect. Curlee described what is publicly known about the covert action operation and how the Biden and Trump presidencies have since approached the issue of foreign election influence. She recommended Congress create an election threats office with protected funding and a statutory mission, and warned that foreign interventions are more likely to succeed when beneficiaries have an incentive to hide them.
On Rational Security, Scott Anderson sat down with Wittes, Ariane Tabatabai, and Joel Braunold to discuss next week’s Israeli election and what a new government could mean for Israel’s wars in the Middle East; the recent new lows reached in U.S.-Ukraine relations during the current Trump administration after Trump said he would ease U.S. sanctions on Russian diesel; and the current student protests across France.
Katie Kedian laid out a two-part proposal to help Americans recognize covert foreign malign influence: an industry-supported clearinghouse that pools what technology companies and researchers see across platforms, and partnerships with trusted institutions, such as public libraries, to get that information to the public. Kedian explained that although this plan is not a substitute for government action and faces difficulties, tech companies already publicly report on the influence operations they detect and can provide a clearinghouse of data to ground media literacy efforts in knowledge of real influence operations.
In the latest edition of Lawfare’s Foreign Policy Essay series, Lucas Webber, Peter Smith, and Colin P. Clarke explained how the Islamic State-Sahel Province (ISSP) has evolved from a regional insurgency into a transnational terror hub with a path into Europe. The authors described how ISSP has built a logistical corridor from the Sahel through Morocco and into Spain to recruit personnel, move money, and transport materials—including in connection with plots targeting Spain.
On Lawfare Daily, Wittes sat down with Anastasiia Lapatina and Jimmy Rushton to discuss the latest news from Kyiv, including the grave rupture in U.S.-Ukrainian relations, reported breaks in intelligence sharing and in Ukrainian access to Starlink, the Russian assault on Ukrainian energy infrastructure, and the impending arrival of winter.
David Goodstone and Eitan Danon described how Israel and Iran have applied innovation power in current wars in the Middle East, exploiting each other's weaknesses. Israel used sophisticated, short-term tech in campaigns against Iran like Operation Rising Lion and Operation Roaring Lion, while Iran has utilized cheap and expendable systems. The authors noted that domestic factors sustain impasses in Israel, Gaza, and Iran, where politics matter in addition to military power.
Dov Waxman reviewed Omer Bartov’s book, “Israel: What Went Wrong?” and noted that Bartov’s book is a powerful and timely guide to the war Israel has waged in Gaza and the evolution of Zionism. However, Waxman also argued that Bartov does not thoroughly address Palestinians as political actors, how the events of October 7th traumatized Israelis, and does not fully explain how an Israeli constitution could have provided greater rights to Palestinians.
Hannes Bastians and Maarten Herbosch argued that the EU Artificial Intelligence (AI) Act should be interpreted with a strong focus on the AI model regime’s purpose so that serious AI safety incidents or cybersecurity incidents–like OpenAI models escaping their test environments–do not go unreported. Bastians and Herbosch identified areas where the legislation’s legal certainty could be strengthened, including how“serious incident” is defined for frontier AI models, whether near-misses are covered, and whether the reporting obligation reaches internal models.
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren wrote about an OpenAI employee’s arrest for allegedly bugging a conference room in the company’s San Francisco office; the security firm NorForge’s report detailing how threat actors are using the Cairn agent in cybercrime; and more.
On Lawfare Daily, DiResta sat down with Riana Pfefferkorn, and Cyndie Demeocq to discuss the guests’ new research into how existing federal criminal law applies to artificial intelligence (AI)-generated child sexual abuse material, what 71 federal prosecutions reveal about the legal issues created by generative AI, and more.
On Scaling Laws, Kevin Frazier sat down with Jerod Tufte to discuss why the courts do not utilize more AI in their operations and what the public should expect from AI as its capabilities grow. The two considered how AI may change our constitutional system and how judges should weigh the risks of adopting new tools with the costs of delaying their use.
On Lawfare Daily, Frazier sat down with Asad Ramzanali to discuss the creation of a Cyber Safety Review Board, a mechanism based on the National Transportation Review Board designed to independently monitor cybersecurity incidents; how it would monitor incidents; and what advantages it would have over current independent monitoring firms.
Frazier and Lisa Klaassen explained that kill switches for AI increasingly appear in legislation as solutions to AI threats, but the specifics of who is authorized to control the switch, when the shut off could be justified, and what it would entail are unclear. Klaassen and Frazier recommend greater transparency from labs about their safeguards, research to develop and share mitigations, and increased internal testing.
And that was the week that was.
