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Table of Contents
- Introduction (Natalie Orpett)
- Prosecuting Jan. 6 (Roger Parloff)
- Prosecuting Donald Trump (Anna Bower and Roger Parloff)
- Social Media and Content Moderation (Quinta Jurecic)
- Cybersecurity & Technology (Eugenia Lostri and Stephanie Pell)
- FISA Section 702 (Eugenia Lostri and Stephanie Pell)
- Congress and the Ongoing House Speakership Drama (Molly Reynolds)
- Russia’s War in Ukraine (Eric Ciaramella)
- Israel-Hamas War (Dan Byman and Dana Stuster)
- Democratic Crisis in Israel (Benjamin Wittes)
- Climate Security (Tyler McBrien)
- Foreign Relations and International Law (Scott R. Anderson)
- Section 3 of the 14th Amendment and the Trump Disqualification Tracker (Hyemin Han)
- Trump Trials Docket Watches (Katherine Pompilio)
- National Security Primary Source Documents (Matt Gluck)
– Natalie Orpett, Executive Editor
It’s been a tough year in “hard national security choices.” The news came fast and furious and covered a dizzying array of topics. Wars and natural disasters, criminal prosecutions and economic confrontations, artificial intelligence and Reconstruction-era constitutional amendments, and so much more.
Fortunately, Lawfare’s incomparable community of contributors includes experts on pretty much anything, and our breadth of coverage reflects that. We published more than six hundred articles and released more than three hundred podcasts; our metaphorical pages and airwaves brought you academic-quality analysis at the pace of journalism. As the year comes to a close, we wanted to take stock of what we’ve done this year, and how we’ve done it.
So what stood out to us in 2023?
To begin: Over the course of six months, former President Trump became a criminal defendant in four separate jurisdictions, three and a half of which—Florida (in June), D.C. (in August), and Georgia (also in August)—relate to his time as president. (The half is New York, in March, which relates mostly to Trump’s conduct as a presidential candidate.) We launched a new project, The Trump Trials, to compile our analysis of the wide-ranging issues at stake, along with a docket watch and other primary source documents for each case. We considered how the cases interacted with one another, and what that means for Trump. Now, as the 2024 election approaches, all eyes are on a previously little-known provision of the 14th Amendment, Section 3, that might disqualify Trump from the presidency due to his conduct on Jan. 6, 2021. It’s a possibility we first considered less than two weeks after the insurrection. As voters and advocacy groups launched Section 3 challenges in courts across the country, we’ve been watching the litigation unfold and compiling our analysis in our Trump Section 3 Disqualification Tracker. And every week, we hold a live event to talk through the latest developments in the cases, the disqualification challenges, and more.
But our democracy has faced other challenges this year as well. So we’ve examined threats to democracy from all quarters—and looked for solutions. Domestic extremism, and how to dislodge and combat it. Attacks on the integrity of our elections, and new legislation to shore them up. Abuses and excesses by law enforcement and within the criminal justice system, and efforts at reform. Press freedom, the role of the media, and what to do about disinformation. Backsliding—but also recoveries—in democracies around the world, including Poland, West and Central Africa, Guatemala, Brazil, India, Canada, El Salvador, Argentina, Turkey, and Egypt. How to think about democracy more broadly.
And, as we always have, we’re evaluating our democratic institutions here at home. Executive power and its limits, as well as efforts at reform. What Congress is up to. And how the courts are confronting issues of national security.
Of course, threats to democracy were not the only national security issues we faced in 2023. There were two major armed conflicts, one between Russia and Ukraine, the other between Israel and Hamas. Immigration, the border, and migration were enduring challenges. The Defense Department issued a directive on the use of autonomous weapons; it also committed to mitigating civilian harm in conflict and ultimately released a policy to implement it. The Biden administration announced a new policy on conventional arms transfers. We marked the anniversary of the War Powers Act and considered lessons learned and the broader impact. Things we may not have considered national security matters a decade ago (pandemics, data brokers, privacy) continued to present problems, as did the things we did (counterterrorism, post-war Afghanistan, ISIS). And we looked at legal issues around currently simmering tensions that could erupt into future conflict, such as attacks on U.S. personnel in the Middle East and proposals to use military force against Mexican drug cartels.
So, without further ado, here’s the Lawfare team on the “hard national security choices” that defined 2023. This is The Year That Was: 2023. We’ll see you next year.
Prosecuting Jan. 6
– Roger Parloff, Senior Editor
This year, the Justice Department continued to prosecute what we at Lawfare have referred to as the blue-collar perpetrators of the Jan. 6 insurrection—close to 1,200 such cases in federal court by the end of 2023.
As with the Oath Keepers trial, we provided a day-by-day, minute-by-minute, live blog of the four-month trial of five high-ranking Proud Boys. And we analyzed issues as they arose, including whether the jury would be fair and the challenges of the seditious conspiracy charges. The trial ended in convictions for all, including four on seditious conspiracy charges. We also discussed the complexities of the terror-enhanced sentences that top Oath Keepers and top Proud Boys received and whether they were too harsh—22 years for Proud Boy Enrique Tarrio and 18 years for Oath Keeper E. Stewart Rhodes III and Proud Boy Ethan Nordean—or, as the Justice Department is now contending on appeal, too lenient!
For almost 20 months now, we have also been tracking legal challenges to the Justice Department’s use of a key felony charge in more than 320 Jan. 6 cases: “corrupt obstruction of an official proceeding” under 18 U.S.C. § 1512(c)(2). Just this month, shortly after we described the striking fragility of the two appellate court rulings sustaining the department’s readings of that law, our concerns proved justified, as the U.S. Supreme Court granted review of the matter.
Prosecuting Donald Trump
– Anna Bower, Legal Fellow, & Roger Parloff, Senior Editor
The June indictment in the Southern District of Florida brought charges against Trump and two former aides for willful retention of national defense information under the Espionage Act and for obstruction of justice. The indictment brought some obvious questions: What is the Espionage Act anyway, and how should we understand it in the context of this indictment? What are these documents? Isn’t this what Hillary Clinton did? Can’t a president keep presidential records after leaving office? But there were less obvious questions as well. How would the judge—who had previously presided over a case involving the government’s search of Mar-a-Lago—administer the case? What is a Garcia hearing? How would attorney-client privilege affect the availability of key testimony? And one example of an issue very likely to become contentious as the case approaches trial: What is the Silent Witness Rule, and how does it work?
The August indictment, brought in Washington, D.C., alleged that Trump pursued multiple fraudulent schemes to stay in power despite having lost the 2020 presidential election. Beginning with our analysis of the case, its factual allegations, and the relevant statutes, we have examined closely, both in podcasts and articles, virtually all the key legal issues presented by the case. For instance: Is it a defense if Trump sincerely believed that the election was stolen—and might a jury buy such a claim? Does he have a right to force Judge Tanya Chutkan’s recusal from the case? Is he entitled to a change of venue to evade the judgment of a Washington, D.C., jury? Can he defeat prosecution by invoking absolute presidential immunity for his “official acts”?
But federal prosecutors were not the only law enforcement officials to bring criminal charges against Trump in 2023. Local prosecutors in New York City and Atlanta also sought and received criminal indictments of the man who left the office of presidency less than three years ago.
With respect to the New York case, alleging falsification of business records related to hush money paid to adult film actress Stormy Daniels, we addressed some of the thorny legal issues raised by the indictment. Lee Kovarsky, for example, addressed whether the charged offenses are “preempted” by federal law. Josh Blackman and Seth Tillman argued that the case cannot be removed to federal court because the president is not an “officer of the United States”—an argument that Trump’s legal team would later accuse prosecutors of “cribbing” from our site.
In Fulton County, Georgia, Trump was charged alongside 18 co-defendants in a conspiracy case that alleged criminality beyond the scope of the other Trump indictments. Having followed the pre-indictment developments and analyzed obscure matters of Georgia criminal procedure since mid-2022, we were well positioned to explain everything from niche areas of Georgia law to the prospect of some defendants’ removal to federal court. We also published an exhaustive account of the Coffee County voting system breach, which features prominently in the Fulton County indictment. In a series of follow-up articles, we published the Georgia Bureau of Investigation’s Coffee County report, critically examined the document’s glaring omissions, and revealed new details about the previously unknown involvement of an individual indicted in Fulton County for conduct separate from the Coffee County caper. At the same time, we produced extensive factual reporting and legal analysis of the Georgia election interference case brought by Fulton County District Attorney Fani Willis. Our neurotically detailed courtroom dispatches have chronicled nearly every major happening in the case, from grand jury selection to Mark Meadows’s testimony in federal court.
– Quinta Jurecic, Senior Editor
In the world of technology platforms, 2023 began with a bang: In February, the Supreme Court heard oral arguments in Gonzalez v. Google and Twitter v. Taamneh, two cases that threatened to upend the existing legal regime governing platforms’ liability for third-party content on their services. The cases opened the door to a possible overhaul of Section 230 of the Communications Decency Act, the statute that secures platform immunity for most user content and that has become increasingly controversial following the “techlash” of recent years. But the Supreme Court seemed hesitant over the potential ripple effects of substantially altering that liability regime, instead resolving the two cases by ruling in favor of the platforms on the substantive issue in Taamneh in such a way that allowed the justices to send Gonzalez back down to the lower courts without touching Section 230.
These rulings came as a relief to platforms—and onlookers like myself who worried about the chaos that might result from a sloppy opinion—but, as Daphne Keller explored, the Taamneh decision rested on potentially troubling assumptions about how platforms work that could still do damage in the long run. And platforms’ legal troubles are not over. TikTok, in particular, has been the subject of repeated proposals to ban or limit access to the app within the United States, along with state-level efforts that are currently mired in litigation. More broadly, in 2024 the Court is set to hear a pair of cases concerning legislation in Florida and Texas limiting platforms’ ability to remove certain types of content—a legal battle stemming from unfounded conservative insistence that social media disproportionately penalizes right-wing speech.
This brings us, of course, to Elon Musk, who purchased Twitter in October 2022 in part to undo this supposed censorship. 2023 was the year of Musk’s Twitter—now “X”—as the billionaire destroyed the platform’s content moderation capabilities, potentially placing Twitter at risk of violating European regulatory requirements, and released swaths of material dubbed the “Twitter Files” about the platform’s past moderation practices. Musk’s hostility toward efforts to curate a more healthy information ecosystem has helped usher in a broader industry-wide backlash against such work—a tricky proposition in the midst of political turmoil around the globe, producing violent images and propaganda campaigns that require particularly careful moderation by platforms. Part of this hostility, meanwhile, has manifested in the form of a multipronged harassment campaign against independent researchers conducting research on how falsehoods spread online and working to clean up the information environment. That would be concerning under any circumstances—but it’s particularly worrying heading into the 2024 election.
Cybersecurity & Technology
– Eugenia Lostri, Fellow in Technology Policy and Law, & Stephanie Pell, Senior Editor
This year could go down as the year of artificial intelligence (AI) or, rather, the year of generative AI. The rapid development of generative AI caused a flurry of activity from governments around the world seeking to understand the technology and regulate it. But what does it mean to regulate AI? Contributors offered several answers to the big question, focusing on risk regulation, establishing a digital regulator, using the covert action statute as a model to ensure the careful use of high-risk national security AI, professionalizing AI engineering, or drawing from lessons learned from money laundering and financial crime and algorithmic transparency.
Often generative AI disrupted the best laid plans for regulation. An unbound ChatGPT may present some benefits, but concerns remain about how AI can be exploited by bad-faith actors. Some cybercriminals have been able to use tools like ChatGPT to help them write malicious code. Deepfakes can erode trust in public institutions and cause reputational damages. AI could worsen (but also help!) political advertising during elections. AI systems themselves are vulnerable to adversarial attacks.
Attempts at regulation in the United States and the European Union highlight the tensions between harnessing the technology for innovation and protecting users from harm, in addition to implicating national security issues domestically and internationally. The United States issued an extensive executive order, an ambitious road map for AI. These tensions are not limited to governments, as the chaos with OpenAI’s leadership demonstrates.
While policymakers are attempting to build the regulatory plane as they fly it, they are also looking back, focusing on legacy problems that plague the ecosystem and inhibit progression toward a more cyber secure future. The Biden administration’s National Cybersecurity Strategy and a first iteration of its implementation plan dedicate significant ink to shifting the burden of cybersecurity risk from the users to those better suited to address it.
Regulation is an element of this burden shifting, and the National Cybersecurity Strategy calls for harmonized cyber regulations. But there are different kinds of regulations. It is important to determine which category is best suited for different sectors and to understand the challenges to enforcement that must be addressed.
FISA Section 702
– Eugenia Lostri, Fellow in Technology Policy and Law, & Stephanie Pell, Senior Editor
Having had five years to reform and reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), Congress was on the brink of producing the national security version of the debt ceiling crisis. The authority was set to expire on Dec. 31, 2023, but, as the deadline was approaching, Congress kicked the proverbial can down the road by extending the authority into April 2024 via the National Defense Authorization Act (NDAA). There was, however, bipartisan opposition to using the NDAA for even a brief extension of Section 702.
The politics of this reauthorization process have been abnormal, to say the least. While Republicans are generally reliable votes for law enforcement and intelligence community equities, an alliance between MAGA Republicans who distrust the “deep state” and civil-liberties-minded Democrats who have long wanted surveillance reform produced a bill that significantly restricts the way the government can use Section 702. The bill was reported out of the House Judiciary Committee 35 to 2. The House Intelligence Committee reported out a different bill—one that, as expected, privileges the interests of law enforcement and the intelligence community.
Prior to the introduction and markup of the two House bills, the most divisive aspect of FISA 702 reauthorization and reform was the debate over whether to require the FBI to obtain a court order before conducting U.S. person queries of 702 information. Since the beginning of the year, the government and former intelligence community officials have argued that privacy advocates’ insistence on a probable cause court order was legally and operationally unworkable.
The majority of the Privacy and Civil Liberties Oversight Board (PCLOB) offered a compromise, recommending a court order under the standard the government currently uses to conduct U.S person queries: reasonably likely to return foreign intelligence information or evidence of a crime. To address the FBI’s operational concerns, the PCLOB majority proposed that the government be allowed to run U.S. person queries before obtaining a court order. The need to obtain Foreign Intelligence Surveillance Court approval would be necessary only when a hit occurs and the government seeks to retrieve the content of those results. Neither the Judiciary nor the Intelligence Committee bill adopts this compromise.
But the disagreement over U.S. person queries now pales in comparison to other provisions that make each bill impossible to pass. On the House Judiciary side, the bill would effectively repeal the authority. On the House Intelligence side, the bill significantly expands the “class of businesses and other entities required to assist in FISA 702 surveillance.” The reauthorization challenges will continue into the new year.
Congress and the Ongoing House Speakership Drama
– Molly Reynolds, Senior Editor
As in any other year, we kept a close eye on what Congress was doing in the realm of national security. We tracked continuing efforts to address the fallout from Jan. 6, including a new Senate majority staff report on the FBI’s failures in the lead-up to the Capitol attack and a report by the Government Accountability Office, as well as an important legislative fix by means of the Electoral Count Reform Act. We continued our analysis of the Jan. 6 committee’s work and did a close read of its report, which it had issued at the end of 2022—but we also identified the many questions that remained. We analyzed the state of congressional authorities like the subpoena power and war powers, and also looked at some notable events, like congressional efforts at classification reform and a hearing on UFOs.
We looked at some big-picture questions, such as how partisanship and policy dynamics affect congressional oversight, how Senate confirmation can politicize military personnel policy, what to do in the event of mass congressional incapacitations, and how Congress would have to respond if no 2024 presidential candidate won a majority of the Electoral College votes. There was a lot to check in on.
But the House of Representatives garnered special attention this year. January began with a four-day, 15-ballot marathon that ended with Rep. Kevin McCarthy (R-Calif.) holding the speaker’s gave—only to see him lose the office nine months later, ousted when a dissident faction within his own conference joined with House Democrats to remove him. It took three weeks, four different nominated Republican candidates, and four votes of the full body for the House to choose McCarthy’s successor, Rep. Mike Johnson (R-La.)—who was immediately faced with urgent national security issues that would occupy his agenda.
Congressional dysfunction can be a national security issue, and the particular dynamics of the intraparty conflict that brought us this year’s speakership drama provide several examples of what this can look like. In October, while Republicans struggled to coalesce around a successor to McCarthy, the House was left with only a temporary leader, Rep. Patrick McHenry (R-N.C.). McHenry held that job—formally titled speaker pro tempore—on the basis of a 2003 House rule under which a speaker, once elected, submits to the clerk of the House a list of individuals who would be called to serve a temporary speaker should the office become vacant. Adopted as part of a package of reforms to help ensure continuous House operations in the event of a mass incapacitating event, the rule was designed for a situation where the speaker is dead or incapacitated—not a political crisis where a majority party can’t agree on a new leader.
McHenry’s three-week tenure was marked by vigorous debate over his power in the role, including whether the House could consider legislation. He consistently maintained that the House could do little in the absence of a permanent speaker, and while the chamber managed to select a new speaker before a real need for legislative action presented itself, the episode illustrated a potential hole in the House’s approach to government continuity. Under the interpretation of the rule that prevailed this year, in an actual disaster—such as the 9/11-like event the rule was designed to speak to—the House could find itself legislatively paralyzed.
Republicans’ intraparty conflict has also had implications for Congress’s ability to address national security issues. As of this writing, Congress has failed to approve both additional assistance for Ukraine and aid to Israel in response to ongoing war in Gaza. It has also left a long-term reauthorization of Section 702 of the Foreign Intelligence Surveillance Act to be addressed in the new year. Divisions within the House Republican Conference have made action on all of these issues more difficult, and Speaker Johnson’s learning curve hasn’t helped matters. With looming deadlines to keep the government open waiting in mid-January and early February, plenty of challenges remain around the corner.
Russia’s War Against Ukraine
– Eric Ciaramella, Contributing Editor
For Ukraine, the year 2023 started out on a relatively optimistic note. The Ukrainian armed forces’ battlefield successes in Kherson and Kharkiv in the fall of 2022 spurred the United States and European nations to launch an unprecedented operation to flood Ukraine with weapons, ammunition, and training, hoping to facilitate a major Ukrainian counteroffensive that would force Russia to the negotiating table on terms favorable to Kyiv. Lawfare covered the ins and outs of U.S.-led security assistance efforts, including the challenges of building partner capacity and lessons for Taiwan.
But no plan survives first contact with the enemy. When Ukrainian troops counterattacked in June, they encountered vast Russian minefields, formidable fortifications, and swarms of killer drones that blunted their progress from the get-go. These setbacks led the Biden administration to reverse its long-held opposition to providing cluster munitions to Ukraine. Lawfare examined the humanitarian and operational considerations that factored into this controversial decision.
The mood in Kyiv at the end of this year is somber but resolute. Ukrainians were frustrated not only with the failure of the counteroffensive but also with the unexpected political crisis that emerged in Washington over aid to Ukraine. Despite strong bipartisan support in Congress for Ukraine throughout 2022 and the first half of 2023, disarray in the House Republican caucus upended Biden’s request for $61 billion in additional military and economic aid to Kyiv. Republicans have tied their approval of the aid to the adoption of stringent new policies on immigration and border security. But despite the White House’s apparent willingness to compromise, we enter 2024 uncertain when and how such a deal might come together. Ukrainian troops are sitting in trenches in subzero temperatures defending their country’s freedom while vital supplies from the United States dry up. If Congress does not get its act together, the calamity that could befall Ukraine in 2024 is hard to overstate.
Other stories about the war in Ukraine consumed our attention throughout the year as well. The destruction of the Nova Kakhovka dam in June caused a massive ecological and humanitarian disaster and raised complicated questions about international law and accountability. A few weeks later, we tried to make sense of hot-dog-stand-owner-turned-mercenary-turned-mutineer Yevgeny Prigozhin’s quixotic march on Moscow.
The dialogue between Mykhailo Soldatenko and Gregor Novak about the Black Sea Grain Initiative that appeared on the pages of Lawfare offered insightful views about treaty law and the nature of international commitments. Russia withdrew from that agreement in July, but Ukraine’s targeted strikes against Russian naval assets in the Black Sea forced Moscow to acquiesce to a de facto safe corridor for exports from the port of Odesa—a major victory for Kyiv in an otherwise tough year. Meanwhile, Soldatenko’s trenchant analysis of the 1994 Budapest Memorandum is also worth another read as Ukraine and its partners ponder an innovative model for long-term security arrangements outside of a traditional treaty alliance.
Finally, we kept tabs on the evolving debates over accountability mechanisms for Russia’s many crimes against Ukraine, including the crime of aggression. Scott R. Anderson and Natalie Orpett examined the Justice Department’s first-ever war crimes prosecution, which was brought against four Russian or Russia-affiliated soldiers who allegedly abducted and tortured a U.S. citizen. Our contributors also debated the many legal and political complexities associated with confiscating Russian sovereign assets to fund Ukraine’s reconstruction. The fate of the bipartisan Rebuilding Economic Prosperity and Opportunity (REPO) for Ukrainians Act is uncertain, but with Congress’s dithering over Biden’s aid request, pressure on policymakers to unlock what could amount to $300 billion in frozen Russian assets will only grow in 2024.
– Daniel Byman, Foreign Policy Essay Editor, & Dana Stuster, Deputy Foreign Policy Essay Editor
Since Hamas launched its horrific terrorist attack on Israel on Oct. 7, our contributors have tried to make sense of what happened, to understand Hamas’s strategy, and to examine how Israel will or should respond. Several of them looked for analogues to contextualize the conflict. The Sept. 11 attacks seemed the most ready comparison—and the one that President Biden made—but experts have pointed out the shortcoming of this analogy. Raphael Cohen noted the significant differences between the current situation and Sept. 11 and the war in Afghanistan that followed. The “most important difference,” he wrote, is that “[i]n the Afghanistan war, the United States could eventually leave …. For the simple reason of geography, Israel lacks such an option. For better or worse, Israel and Gaza are fundamentally intertwined.” Amb. James Jeffrey argued that the Hamas attack was more similar to the surprise attack that started the Yom Kippur War in October 1973 five decades earlier. Reviewing the history of Israel’s wars since then, Jeffrey stressed the importance of Israel’s objective of destroying Hamas and the need to prevent horizontal escalation—from Syria, Hezbollah, or Iran—that could open new fronts and spiral out of control. Though, so far, the response from groups sympathetic to Hamas has been modest—piracy and drone and missile attacks by the Houthis in the Red Sea, rocket and other attacks on U.S. facilities by Iran-linked groups in Iraq, and cross-border shelling from Hezbollah—the risks are significant. In a review of Hezbollah’s growing arsenal of precision weapons, Benjamin Allison wrote that if Hezbollah were to use its full capabilities, it could jeopardize Israel’s energy and water supply.
After Israel’s offensive began, we looked at the many issues that arose as the conflict progressed—the high number of civilian casualties, the law of proportionality and self-defense, the violence in the West Bank, U.S. arms transfers and intelligence sharing with Israel, the impact in Europe, the environmental consequences, how online platforms online platforms responded, reactions in the international community, the U.S. diplomatic response in Gaza, and more.
We also considered what comes next. Chibli Mallat shared a vision of how to end the war, proposing to “reframe the conflict as a century-old civil war over Israel-Palestine” to better understand the elusiveness of a clear solution. Jessica Davis mapped out what the long-term effort to cut off Hamas’s international finance network will entail. In light of the severe toll the conflict has taken and will continue to take on civilians in Gaza, Aidan Milliff shared his research on how civilians respond to violence, explaining that whether civilians flee, remain, or take up arms depends on how they perceive the future. Michael Rubin, Daniel Arnon, and Richard McAlexander drew on their study of the displacement of Palestinians in 1948, explaining the phenomenon of preemptive displacement and its implications for how violence can be anticipated and how aid should be distributed. Looking at Syria and Ukraine, Reva Dhingra considered the effects of violence targeting civilians and their humanitarian needs beyond the immediate needs for food, shelter, and health care. Direct experience with violent conflict, she wrote, affects civilians’ long-term mental health and has implications for postconflict governance, as people who experienced the horrors of war are often less politically engaged and have little trust in state institutions.
Unfortunately, the war in Gaza grinds on as we enter the new year. Much in the conflict remains uncertain, but you can count on our coverage to continue.
Democratic Crisis in Israel
– Benjamin Wittes, Editor in Chief
Even before the Oct. 7 attack on southern Israel and the ensuing Israeli assault on Hamas in Gaza, the Israeli political scene—and the democratic crisis within Israel—was a major subject of concern. The year began with a new government in Israel, one that included far-right elements bent on annexation of West Bank territories and, more immediately, a dramatic package of judicial reforms that sparked a protest movement unlike any previously seen in Israeli history.
Israeli legal scholars Amichai Cohen and Yuval Shany broke down the judicial reform package in a major six-part series detailing and critiquing the package. The first part offered background on the legal reform initiative. The second article analyzed plans to limit constitutional review by the country’s Supreme Court. The third part analyzed proposed changes to the judicial appointment process. The fourth piece addressed the legislation pertaining to government legal advisers. The fifth article looked at the only part of the package that has so far ended up passing: plans to limit administrative review of government action. The final part analyzed the combined effect of the planned reforms.
Cohen and Shany discussed the judicial reform packages and the protests on a pair of episodes of the Lawfare Podcast. And they continued following the crisis right up until just a few days before the Oct. 7 attacks put the whole project on ice—at least for now.
– Tyler McBrien, Managing Editor
If our recap of Lawfare’s 2022 climate coverage could be described as “doom and gloom”—a wholly appropriate categorization for a year that saw no shortage of climate catastrophes—this year’s Lawfare climate coverage could be summed up with an open question that served as the headline of a piece from Mark Nevitt: “Can Law Adapt to Meet the Climate Crisis?”
Nevitt answers with neither an emphatic yes, nor an emphatic no—rather, he warns of the “legal crisis lurking within the climate crisis,” discusses how “legal inertia thwarts” urgently needed “innovative adaptation action,” and ends with the sober observation that “whether law can adapt to meet the climate moment remains to be seen.” Surabhi Ranganathan discussed the unstable relationship between international law and a changing climate, and how the former must better adapt to address the latter.
In spite of law’s uncertain efficacy in confronting climate change, 2023 saw its fair share of states and individuals putting this open question to the test with success. In March, Melissa Stewart weighed the risks and rewards of Vanuatu’s plan to petition the UN General Assembly to pass a resolution that would request an advisory opinion from the International Court of Justice “on the obligations of States in respect of climate change.” Fortunately, the rewards ultimately outweighed the risks; as we discussed on the Lawfare Podcast, the small South Pacific island nation saw a big climate win only a few weeks later.
But that wasn’t the only David and Goliath climate story of the year. In June, Michael Gerrard previewed a landmark climate case, Held v. Montana, which pitted 16 young plaintiffs—between the ages of five and 22—against their state government. Hollywood couldn’t have scripted a better scene as 22-year-old Rikki Held and her co-plaintiffs alleged that state officials violated their constitutional right to “a clean and healthful environment in Montana for present and future generations.” In August, the court ruled in favor of the young Montanans.
Unfortunately, not all of our climate coverage this year carried the same celebratory tone. Nevitt wrote about President Biden’s decision to waive environmental laws to expedite border wall construction in Texas. Matt Ince and Erin Sikorsky detailed the geopolitical risks that accompany the necessary, rapid transition to clean energy. Sikorsky also discussed efforts to grapple with the scope of the climate migration crisis.
And in November, the U.S. government released its fifth national climate assessment, published every five years, in which it concluded that “without deeper cuts in global net greenhouse gas emissions and accelerated adaptation efforts, severe climate risks to the United States will continue to grow.” Amid the promise of using the law to combat climate change, it was a sobering reminder of the shortcomings of that approach thus far.
Foreign Relations and International Law
– Scott R. Anderson, Senior Editor
While the conflicts in Ukraine and Gaza were undoubtedly the biggest international stories of 2023, they didn’t completely occupy the scene. This year was one of immense challenges on the international front, several of which spurred major innovations in law and policy relating to foreign relations. And at Lawfare, we spent the year tracking many of these trends.
Growing strategic competition between China and the United States was one issue that hung over much of 2023 and manifested in a number of different ways. Several Lawfare contributors considered the motivations and strategy of Chinese President Xi Jinping as well as how his regime might react to the country’s impending economic challenges in an effort to open the black box of China’s decision-making on such issues. Others offered constructive critiques of U.S. strategies for managing various aspects of competition with China, ranging from economic competition to data policy and emerging technologies. We tracked difficulties in China-U.S. negotiations over key areas of concern, ranging from digital policy to the use of artificial intelligence in nuclear command and control. And perhaps most importantly, we considered the threat of a China-U.S. war over Taiwan and what steps might be taken to defend against and deter an attack by China.
These new challenges, however, did not necessarily mean that old challenges faded away. The United States was unable to escape many other international conflicts that have occupied its attention for the past few decades. As the world continued to reckon with the aftermath of the U.S. withdrawal from Afghanistan and the Taliban’s return to power, several Lawfare contributors analyzed past failures in U.S. policy and looked ahead to how the United States should respond to Afghanistan’s serious economic and humanitarian crises, the Taliban’s human rights abuses, and the country’s role in our new era of major power competition. Others considered the lingering legacy of the fateful U.S. decision to invade Iraq 20 years earlier, a topic we explored with senior U.S. and Iraqi officials on the Lawfare Podcast, and examined ongoing challenges facing U.S.-backed allies in Iraq and Syria, ranging from attacks by Iran-backed militias to the (still) ongoing detention of members of ISIS. And while U.S. foreign policy continued to focus more narrowly on major power competition in 2023, this in turn only raised new questions regarding the goals of ongoing U.S. counterterrorism operations and how best to pursue them in light of changing U.S. priorities.
But bullets and bombs were not the only tools of foreign policy Lawfare examined. Over the course of 2023, we also dug deep into the new tools of economic statecraft that the United States is deploying in support of its foreign policy objectives. This included not only major changes in U.S. and international sanctions policies but also innovative new uses of export controls, new efforts to regulate outbound foreign investment, debates over the handling of both Afghan and Russian central bank assets, and novel legislation targeting perceived instruments of foreign influence. To complement this analysis, we also hosted several senior U.S. officials responsible for key economic statecraft policies on the Lawfare Podcast.
And this is just the tip of the iceberg looming ahead of us. For all that will be happening on the home front in 2024, the world will no doubt keep moving, in ways both expected and otherwise. Making sense of these changes and figuring out how to respond promises to be another major challenge for those who take hard national security choices seriously—and Lawfare will be here to help.
Section 3 of the 14th Amendment and the Trump Disqualification Tracker
– Hyemin Han, Associate Editor
At the center of the law, politics, and democracy Venn diagram for 2023 sits Section 3 of the 14th Amendment. Almost as soon as the tear gas from Jan. 6 dissipated, our contributors began discussing whether any of those involved or responsible might be subject to the post-Civil War bar upon insurrectionists holding office. We covered two such efforts in 2022 and considered implications for Trump. But it was only in 2023 that this provision, known as the “disqualification clause,” transformed into a tool that voters used to challenge Trump’s eligibility for office. Beginning as early as Jan. 6, 2023, but really mounting in full force this fall, voters across the country argued that Trump did engage in insurrection and should not be allowed to run again for high office. We analyzed the key legal questions the lawsuits raise, including whether the provision applies to the president, the political implications of the challenges, the impact of all this on American election laws, and what disqualification might mean for U.S. democracy.
At the close of 2023, the question remains unsettled. The Colorado Supreme Court became the first court in the nation to rule that Trump is disqualified from the state’s primary ballot (a petition for certiorari to the Supreme Court was filed within days). But the Minnesota Supreme Court dismissed a similar challenge, finding no provision under state law that would prevent Trump from running in primaries and caucuses (though it punted the question of his eligibility for the general election). And the Supreme Court of Michigan declined to hear an appeal of a lower court’s ruling dismissing a Section 3 challenge on the grounds that Trump’s eligibility for Michigan’s primary ballot was a nonjusticiable political question. But as December came to an end, Maine’s secretary of state issued a decision removing Trump from that state’s ballot.
As the polarizing debate over whether Trump should be disqualified under Section 3 enters its zenith in 2024, with more challenges expected and expectations that only the Supreme Court will be able to give us final answers, Lawfare’s Trump Disqualification Tracker will be your one-stop shop for everything you need to know.
Trump Trials Docket Watches
– Katherine Pompilio, Associate Editor
With tracking Trump’s trials and tribulations comes documents. Lots and lots of documents. Following the indictments of Trump in March (New York), June (Florida), and August (Washington, D.C., and Georgia), we created new resource pages for readers (and, admittedly, ourselves) to have easy access to any and all documents produced from litigation in each of these cases against Trump and his co-defendants. Rather than scouring through pay-walled court websites or scrolling through social media feeds, you can use our three permanent, regularly updated pages to have easy access to free, organized, downloadable documents on the Trump dockets. Want to read the indictments for yourself? Or get a better understanding of Trump’s presidential immunity arguments? And what about documents pertaining to the 18 other co-defendants in Fulton County? Check out Lawfare’s Docket Watch resource pages.
The docket watches complement Lawfare’s January 6 Project, which launched in 2021 to document the many efforts to respond to and seek accountability for the Jan. 6 attack on the U.S. Capitol. On that page, we have been tracking and publishing relevant documents from civil litigation, congressional inquiries, investigations, and criminal prosecutions alongside a compilation of our analysis of relevant legal and policy issues. The docket watches are also an integral part of our broader Trump Trials project, where you can also find links to our analysis (both articles and podcasts) and a calendar of key dates in the proceedings.
The Docket Watch: Trump Prosecuted in D.C. resource page follows all relevant documents arising out of United States v. Trump, which alleges that the former president, who was “determined to remain in power” despite his loss in the 2020 election, pursued “unlawful means of discounting legitimate votes and subverting the election results,” including by spreading lies about voter fraud that he knew to be false.
We are also tracking documents from the ongoing proceedings in Georgia on the Docket Watch: Trump Prosecuted in Fulton County resource page. On this page, readers can find filings from The State of Georgia v. Donald John Trump et al., a case that brings 41 counts against Trump and 18 co-defendants, including the indictment, plaintiffs’ notices of removal to federal court, videos of hearings, testimony, and more.
Readers can also access the docket in United States v. Donald Trump, Walt Nauta, and Carlos De Oliveira, the indictment alleging that Trump and his co-defendants improperly removed classified documents from the White House to Mar-a-Lago. Find the indictment, classified document handling procedures, the transcript of Trump’s arraignment, and more on the Docket Watch: Trump Prosecuted in Florida resource page.
National Security Primary Source Documents
– Matt Gluck, Research Fellow
In addition to analyzing “hard national security choices,” we also publish primary national security documents so that when a judicial decision, indictment, or policy announcement becomes available, readers know they can turn to Lawfare to access it and read a short preview. When documents disappear from government servers, or links die, our document posts remain a reliable repository of national security developments.
This year, we added over 140 documents to that primary source repository. While the various prosecutions of former President Trump and the fallout from the 2020 election make up about half of these posts, the documents featured many other salient national security issues. These included, among others, Justice Department indictments, executive branch pronouncements of cybersecurity policy, and plans for implementation; the executive branch’s reporting on U.S. military activities and changes in U.S. military policy; congressional oversight actions; and the executive branch’s reporting on intelligence procedures and statements of intelligence policy. Our document posts aren’t just limited to the U.S. government. When important developments happen at the United Nations or elsewhere, we cover those too.
It’s worth referencing a couple of notable document posts here that you may have missed amid the flurry of other national security news that occupied our pages this year. Just a few months after the indictment of a 21-year-old member of the National Guard who allegedly leaked classified documents, the Justice Department brought another set of indictments against two service members—this time for espionage-related charges. The government on Aug. 3 unsealed charges against two U.S. Navy sailors for passing to Chinese intelligence officers U.S. military secrets and other sensitive information in exchange for financial compensation.
Earlier in the summer, in the military policy realm, the Biden administration partially declassified one presidential policy memorandum and one national security memorandum updating U.S. policy concerning detention and targeting procedures outside areas of active hostilities (in the first memorandum) and the U.S.’s strategic approach to counterterrorism (in the second memorandum). The presidential policy memorandum clarifies that, with the exception of certain exigent circumstances, operations targeting individuals with lethal force must be undertaken with “[n]ear certainty” that the operation will not injure or kill non-combatants. The national security memorandum from October 2022 notes that in light of “lessons learned from our years of effort against terrorism,” “we must avoid undertaking large-scale, U.S.-led nation-building efforts in the name of [counterterrorism] and instead employ tailored approaches” that empower local authorities to take responsibility for their security.
When the indictment, opinion, brief, or new policy drops, make our Documents page the first place you turn.