The Lawfare Podcast

It is the last podcast of the year, and we are giving 2020 an appropriate send-off. Benjamin Wittes sat down with Lawfare executive editor Susan Hennessey, managing editor Quinta Jurecic, senior editor Scott Anderson, and Lawfare contributor and law professor Alan Rozenshtein to talk about the worst stories of the year, as well as their expectations and predictions for the coming year.

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Bob Bauer is a former White House counsel, and he has been leading the legal response for the Biden campaign and transition to the unprecedented onslaught of efforts on the part of the president to overturn the 2020 election. He also recently wrote a piece for Lawfare on the current occupant of the White House counsel's office, Pat Cipollone, and how he should be handling the incredibly difficult position the president has put him in. Benjamin Wittes spoke with Bob about the article, the role of the White House counsel when the president is trying to overturn a democratic election, and the spate of pardons the White House has issued over the last few weeks.

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It's the end of the year, and that means we opened the phones for the annual "Ask Us Anything" edition. You called in with your questions, which we routed to Lawfare contributors for their answers. Benjamin Wittes, Molly Reynolds, Steve Vladeck, David Priess, Susan Hennessey, Scott Anderson, Judd Devermont and Rohini Kurup responded to questions on everything from pardons to prosecuting contractors to ethnic diversity at Lawfare.

Thank you for your questions. And as always, thank you for listening.

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It’s not something that has gotten a lot of attention amid a busy U.S. news cycle, but much has been happening in Ethiopia over the past two months. Prime Minister Abiy Ahmed, who just last year won the Nobel Peace Prize for his efforts to bring unity between Ethiopia and neighboring Eritrea, led a military battle against domestic forces in the northern Ethiopian region of Tigray. The fighting has caused the significant displacement of people living in the region and has involved reports of atrocities. In early December, the Prime Minister claimed victory, but concerns remain about how long tensions will endure—or at least continue to simmer. It’s a complicated situation with major implications for stability in the East Africa and Horn of Africa region. To break it all down, Jacob Schulz talked with two different experts. First, to get a sense of what’s going on and how we got to this point, he spoke with Emmanuel Igunza, a reporter in East Africa for BBC News; then, he spoke with Beza Tesfaye, the director of research and learning for migration at Mercy Corps, about the humanitarian problems implicated by the crisis.

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In the early months of the COVID-19 pandemic, digital technology was touted as a potential savior. In particular, there was a burst of enthusiasm around so-called digital contact tracing apps, which would track people's movements and interactions and notify them if they had been exposed to COVID. Apple and Google, which together control the operating systems for virtually the entire smartphone market, joined forces and created a standard to help researchers, private entities and governments create contact tracing apps. But despite the early hype, enthusiasm about these apps quickly fizzled, and even today, they remain underdeveloped and rarely used. As part of Lawfare's ongoing Digital Social Contract research paper series, law professors Jane Bambauer from the University of Arizona and Brian Ray from the Cleveland-Marshall College of Law, published a paper titled, "COVID-19 Apps Are Terrible—They Didn't Have to Be." Alan Rozenshtein sat down with Jane and Brian to talk about why contact tracing never played more than a marginal role in managing the pandemic.


The United Kingdom of Great Britain and Northern Ireland has been conducting and regulating signals intelligence, SIGINT, since before the United States was born. To talk about how they do it across the pond, David Kris sat down with two experts on UK SIGINT and SIGINT regulation: Michael Drury and Tony Comer, both veterans of Government Communications Headquarters (GCHQ), the British counterpart to our own National Security Agency. Michael was GCHQ's first full-time legal advisor from 1996 to 2010, when he joined the private sector, and Tony was GCHQ's historian until his retirement earlier this year. They compared and contrasted the U.S. and UK experience with SIGINT, SIGINT regulation, popular support for SIGINT and intelligence in general, and also some cutting-edge issues, including how SIGINT works today, synergies between SIGINT and cyber, GDPR encryption and online harms.

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Jasmine El-Gamal is a nonresident senior fellow with the Middle East program at the Atlantic Council. Between 2008 and 2015, she served as a Middle East advisor in the Office of the Secretary of Defense, and as a special assistant to three undersecretaries of defense for policy. She is the author of a recent article in Newlines magazine entitled, "Lost and Found in Guantanamo Bay: Two encounters with two different men in the most notorious detention facility in the world shaped my faith – and my life – forever." She joined Benjamin Wittes to talk about the article, how she ended up as a young woman as a translator at Guantanamo and in Iraq, what she's done since, and how the experience of Guantanamo shaped her later policy career, as well as her view of America, Islam and counterterrorism.

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This week on Lawfare's Arbiters of Truth series on disinformation, Evelyn Douek and Quinta Jurecic spoke with Jaime Longoria, an investigative researcher at First Draft, who monitors information disorder in Latino or Latinx communities in the United States and in Latin America. In the run-up to the 2020 U.S. election, there was an explosion of press stories about mis- and dis-information in Spanish-speaking communities. But this is hardly a new phenomenon. They talked with Jaime about the long-standing and ongoing information disorder in these communities, how it is or isn’t distinctive, why it tends to go under the radar in public conversation and what can be done about it.

Direct download: No_One_Expects_the_Spanish_Disinformation.mp3
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It is two days after the Electoral College has met in 50 state capitals, voted and given 306 electoral votes to Joe Biden, making him the next president of the United States. Or did it? There is talk of a kind of electoral Alamo wherein a final showdown takes place over the counting of those electoral votes come January 6 when Congress meets in a joint session to receive the votes of the state electors. To discuss what happened this week, Benjamin Wittes sat down with Molly Reynolds, senior fellow at the Brookings Institution, and Scott R. Anderson, Lawfare senior editor and fellow at the Brookings Institution. They talked about whether the election is actually over, or if we are heading toward some kind of final cataclysm where the forces of Trumpism take on the last stage of the electoral process.

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Alan Rozenshtein sat down with Yaya Fanusie, a former CIA analyst and an expert on the national security implications of cryptocurrencies, who recently published a paper as part of Lawfare's ongoing Digital Social Contract research paper series, entitled, "Central Bank Digital Currencies: The Threat From Money Launderers and How to Stop Them." They talked about how central banks are exploring digital currencies, how those currencies might in turn be used by criminals and terrorist groups, and how governments and the private sector should respond.

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In the first part of this episode, Jordan Schneider, the host of ChinaTalk, sat down with Yun Jiang, a former Australian government official and an editor at the Australian National University's China Story blog, for a deep dive into the Australia-China relationship, providing much needed context on why tension has boiled over in recent months. In the second part, we excerpt a conversation that Jordan had with Wendy Cutler, a long-time USTR official and current vice president and managing director of the Asia Society Policy Institute. They talked about how the Biden administration could address China on trade, and she offers her take on Yun and Jordan's policy proposals for shoring up Australia.

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This week, the Supreme Court returned once again to the complex and sometimes controversial Foreign Sovereign Immunities Act, or FSIA, that protects foreign sovereigns from litigation before U.S. courts. At the same time, Congress is once again debating new exceptions to the protections provided by the FSIA on issues ranging from cybercrime to the coronavirus pandemic, an effort that may risk violating international law and exposing the United States to similar lawsuits overseas. To discuss these developments and where they may be headed, Scott R. Anderson sat down with two leading scholars on sovereign immunity issues: Chimène Keitner, a professor at the UC Hastings School of Law and a former counselor on international law at the U.S. State Department, and Ingrid Wuerth, a professor at Vanderbilt University Law School and one of the reporters for the American Law Institute's Fourth Restatement on U.S. foreign relations law.

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This week on Lawfare's Arbiters of Truth series on disinformation, Evelyn Douek and Quinta Jurecic spoke with Claire Wardle, the co-founder and leader of the nonprofit organization First Draft and a research fellow at Harvard University’s Shorenstein Center. First Draft recently released a report on the information environment around the development of vaccines for COVID-19, and Claire talked about what she and her team found in terms of online discussion of the vaccine in English, Spanish and French. What kinds of misinformation should we be ready for as vaccines begin to be administered across the world? Why might fact-checking and labeling by platforms not be effective in countering that misinformation? And why is Claire still pessimistic about the progress that platforms and researchers have made in countering dis- and misinformation over the last four years?

Direct download: The_Vaccine_Misinformation_Cometh.mp3
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President-elect Joe Biden has selected a new defense secretary, retired general Lloyd Austin, former commander of Central Command. The selection has received somewhat mixed reviews, and to discuss why, Benjamin Wittes sat down with Brookings senior fellow Mike O'Hanlon, a defense policy analyst, and Kori Schake, the head of defense and foreign policy at the American Enterprise Institute. They talked about why people are upset about General Austin's nomination, his background, the experience he has and doesn't have, who would have been a better choice and whether it matters that this is the second administration in a row that begins by putting a retired general at the head of the Pentagon.

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On Monday, Lawfare released the first paper in its "The Digital Social Contract" paper series. For each paper, Alan Rozenshtein will be doing a podcast interview with the author, and the first guest is law professor Kyle Langvardt of the University of Nebraska College of Law. His paper, "Platform Speech Governance and the First Amendment: A User-Centered Approach," examines how the First Amendment should and should not apply to the content moderation decisions of major internet platforms. Plus, Alan and Benjamin Wittes have a brief discussion to introduce the paper series as a whole.

Direct download: Kyle_Langvardt_on_Platform_Speech_and_the_First_Amendment.mp3
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Jack Goldsmith spoke with Adam Cox and Christina Rodríguez, the authors of "The President and Immigration Law," a new book about the historical rise and operation of a president-dominated immigration system. They discussed the various ways that Congress has delegated extraordinary power over immigration to the president, how what the authors call "de facto delegation" confers massive presidential enforcement discretion that is the basis for programs like the Deferred Action for Childhood Arrivals program, and the benefits, costs and legal limits of this system. They also discussed what President Donald Trump accomplished with his immigration program during his term in office and President-elect Biden's possible immigration agenda.

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In a ruling late in the night, the day before Thanksgiving, the Supreme Court issued a preliminary injunction against Governor Andrew Cuomo of New York, preventing him from imposing restrictions on how many people could attend houses of worship—restrictions that Governor Cuomo defended as necessary to fight the COVID-19 pandemic. In a lawsuit brought by a Catholic Diocese and an organization of Orthodox Jews, a majority of the Court held that the occupancy restrictions had a high likelihood of violating the free exercise of religion as protected by the First Amendment. To help explain that decision and to discuss its implications for future public health responses to COVID, Alan Rozenshtein spoke with law professors Lindsay Wiley of American University and Josh Blackman of the South Texas College of Law.

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On this episode of Lawfare's Arbiters of Truth series on platforms and disinformation, Quinta Jurecic spoke with Alina Polyakova and Ambassador Daniel Fried, the former U.S. ambassador to Poland and the Weiser Family Distinguished Fellow at the Atlantic Council. The two have a new paper out on “Democratic Offense Against Disinformation,” published by the Atlantic Council and the Center for European Policy Analysis. They have written previously on how democracies can defend themselves against disinformation and misinformation from abroad, but this time, they turned their attention to what it would mean for democracies to take the initiative against foreign purveyors of disinformation, rather than just playing defense.

So how effective are democracies at countering disinformation? What tools are available if they want to play offense? And is it even possible to do so without borrowing tactics from the same authoritarian regimes that democracies seek to counter?

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The top Iranian nuclear scientist has been killed, apparently in an Israeli strike. Mohsen Fakhrizadeh, who has long been the mastermind of the Iranian nuclear program, was gunned down in an attack with a remote control machine gun. Iranian reprisals are expected, although their timing and nature is not clear. It also puts the incoming Biden administration, which is looking to bring back the Iran nuclear deal, in a bit of a pickle.

To chew it all over, Benjamin Wittes sat down with Scott R. Anderson, international law specialist and Lawfare senior editor; Suzanne Maloney, the vice president and director of the Foreign Policy Program at the Brookings Institution and an Iran scholar; and Natan Sachs, director of the Center for Middle East Policy at Brookings where he focuses on Israeli policy. They talked about why the Israelis would conduct this operation, how effective its killing of Iranian nuclear scientists has been, whether any of it is legal and what it means for the future of U.S.-Iran relations.

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“American companies are in a bind.” So argue Bill Priestap and Holden Triplett, who have written a series of articles for Lawfare making the case that more and more state intelligence agencies are turning their attention to private businesses, using the tools of espionage in order to build their own economic power. Both writers are speaking from experience: Priestap ran the FBI’s counterintelligence division from 2015 to 2018, and Triplett led the FBI office in Beijing from 2014 to 2017 and was deputy head of the FBI office in Moscow from 2012 to 2014. Quinta Jurecic sat down with them to discuss why countries have started to use their intelligence services in this way, what dangers this creates for American businesses and why counterintelligence risks are hard to intuitively understand.

Direct download: Why_Businesses_Need_to_Take_Espionage_Seriously.mp3
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