The Lawfare Podcast

Yesterday was a big day—the day that the Facebook Oversight Board released its first decisions. The independent board, an experiment in platform governance set up by Facebook, handed down five rulings weighing in on the company’s decision to remove various posts for violating Facebook’s community guidelines. It may not be Marbury v. Madison, but it’s still a big moment for online speech regulation.

To mark the occasion, Lawfare is setting up a new page collecting and tracking the board’s decisions.

For this episode of the podcast, Quinta Jurecic spoke with Evelyn Douek, cohost of Lawfare’s Arbiters of Truth podcast series on disinformation and a lecturer at Harvard Law School, and Lawfare deputy managing editor Jacob Schulz. They discussed everything you need to know about the Oversight Board, including those most basic but crucial of questions: What exactly is it, anyway? What’s in the decisions? And why should we care?

Direct download: The_Least_Dangerous_Branch_of_Facebook.mp3
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For this episode of Arbiters of Truth, Lawfare’s miniseries on disinformation and misinformation, Kate Klonick and Quinta Jurecic spoke with Joan Donovan, the research director at the Shorenstein Center on Media, Politics and Public Policy at the Harvard Kennedy School. Her work focuses on networked social movements, disinformation and media manipulation—so she’s the perfect person to help untangle the continued fallout not only from the January 6 Capitol riot, but from the last four years more broadly. They talked about Joan’s route from researching Occupy Wall Street to studying far-right disinformation, the importance of understanding networks of communication and coordination in studying social media, and the responses of big social platforms to the violence in the Capitol.

Direct download: Joan_Donovan_on_Disinformation_and_Social_Movements.mp3
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David Kris sat down with David Hatch, the senior historian at the U.S. National Security Agency. They discussed Project VENONA, an incredibly significant intelligence program involving encrypted Soviet messages that began during World War II and went on for many years thereafter. It's a story full of unusual events and interesting lessons about intelligence and counterintelligence and spy vs. spy. There's also a little review of encryption—specifically, the risks of reusing one-time encryption pads—and a discussion of the declassification process of Project VENONA and why we can talk about the project at all.

Direct download: Project_VENONA.mp3
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Jack Goldsmith sat down with Michael McConnell, the Richard and Frances Mallery Professor and director of the Constitutional Law Center at Stanford Law School, a senior fellow at the Hoover Institution and the author of the new book, "The President Who Would Not Be King: Executive Power Under the Constitution." They discussed McConnell's textual historical approach to interpreting presidential power under Article II of the U.S. Constitution, the many novel elements of executive power embodied in Article II and the proper understanding of Article II's Vesting Clause. They also talked about contemporary implications of his reading of Article II for war powers, the unitary executive and late impeachments.

Direct download: The_President_Who_Would_Not_Be_King.mp3
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The day before last week's inauguration of President Joe Biden, four of the Biden administration's core national security nominees appeared before various Senate committees for their confirmation hearings. Avril Haines, Biden's nominee for Director of National Intelligence, appeared before the Senate Select Committee on Intelligence; Alejandro Mayorkas, the nominee for Secretary of the Department of Homeland Security, appeared before the Senate Committee on Homeland Security and Governmental Affairs; retired general Lloyd Austin, Biden's nominee to head the Defense Department, appeared before the Senate Armed Services Committee; and Antony Blinken, Biden's nominee for Secretary of State, appeared before the Senate Foreign Relations Committee. The hearings included a whole lot of performative partisan flattery and outrage, but they also provided a snapshot of the Biden administration's national security priorities. We cut out all of the nonsense, all of the unnecessary information and the duplicative questions to leave you only the most interesting questions and answers.

Direct download: Confirmation_Hearing_Blitz_with_No_Bull.mp3
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It was supposed to be the big sequel to the January 6 "Stop the Steal" rally-turned-riot. It was supposed to be the largest armed protest in the history of the United States, taking place in all 50 state capitals. And yet, Inauguration Day turned out to be peaceful. Protesters were few; acts of violence were even fewer. It's a major counterterrorism success, and like many major counterterrorism successes, it has largely been unremarked upon. How did we go without the sequel to the bloody events of January 6? To what extent should we credit law enforcement action or the deplatforming of the president and his followers, or is the explanation something entirely different? To talk it through, Benjamin Wittes sat down with Dan Byman, Lawfare's foreign policy editor and counterterrorism expert, who has identified six major factors that likely contributed to this week's success.

Direct download: Dan_Byman_on_the_Sequel_that_Never_Came_to_Be.mp3
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During his inaugural address yesterday, President Biden spoke about the subject of this podcast: disinformation. “There is truth and there are lies,” Biden said, “lies told for power and for profit.” And he asked Americans to unify rather than “turn inward” against those “who don't get their news from the same sources you do.”

But in an era of QAnon and pandemic disinformation, how will that unification be possible? The day before the inauguration, Evelyn Douek and Quinta Jurecic spoke with Kate Starbird, an associate professor of Human Centered Design & Engineering at the University of Washington, for this first episode of Lawfare's Arbiters of Truth miniseries under the Biden administration. Kate last came on the podcast in March 2020 to discuss disinformation and misinformation around the coronavirus, and she has had a long year since then researching online ecosystems around the pandemic and supposed voter fraud. And the Capitol riot on January 6 threw all this into sharp relief, as the things that Kate studies every day boiled over into mainstream consciousness with a vengeance. They spoke with Kate about what led up to the riot, what the disinformation landscape looks like now and what kind of work will be required to move forward.

Direct download: Information_Disorder_During_and_After_the_Trump_Presidency.mp3
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Private entities—in particular, technology giants like internet service providers, email services and social networks—play a vital role in helping law enforcement fight child pornography online. But the involvement of private entities does not eliminate the Fourth Amendment issues that come with electronic surveillance. In fact, the more the private entities cooperate with the government, the more likely it is that courts will consider them government agents, and the evidence they collect will be subject to the same Fourth Amendment restrictions as apply to law enforcement agencies. Jeff Kosseff is an assistant professor at the United States Naval Academy's Cyber Science Department. As part of Lawfare's ongoing Digital Social Contract research paper series, he published a paper entitled, "Online Service Providers and the Fight Against Child Exploitation: The Fourth Amendment Agency Dilemma." Alan Rozenshtein spoke with Jeff about how the government and internet companies can thread the needle on fighting digital child exploitation without running afoul of the Constitution.

Direct download: Jeff_Kosseff_on_the_Fight_Against_Online_Child_Pornography.mp3
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In the wake of the January 6 mob attack on the Capitol, some have called for the invocation of Section 3 of the 14th Amendment. Section 3 disqualifies anyone who has engaged in rebellion or insurrection against United States from public office. In particular, critics of President Trump have seized on this as a potential way of preventing him from running in 2024. Alan Rozenshtein spoke about Section 3 with professors Daniel Hemel of the University of Chicago Law School and Gerard Magliocca of the Indiana University Robert H. McKinney School of Law.

Direct download: Section_3_of_the_14th_Amendment.mp3
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The NSA this week released a long-awaited update to its signals intelligence policy, which had not been updated since 1988. David Kris, former assistant attorney general for the National Security Division, shortly thereafter produced an even longer paper analyzing the dense and technical policy document. David joined Benjamin Wittes to talk about the significance of this new policy document, what it does and how it is different from the document it replaces. They also talked about David's paper, how he came to write it, why it is so much longer than the policy document itself and what the implications of the new NSA policies are for signals intelligence collection and civil liberties.

Direct download: David_Kris_on_the_NSA_Annex.mp3
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Yesterday, January 13, the House of Representatives impeached President Trump a second time for encouraging the violent riot in the Capitol Building on January 6. And yet, the impeachment is probably less of a crushing blow to the president than something else that’s happened in recent days: the loss of his Twitter account.

After a few very eventful weeks, Lawfare's Arbiters of Truth series on disinformation is back. Evelyn Douek and Quinta Jurecic spoke with Jonathan Zittrain, the George Bemis Professor of International Law at Harvard Law School, about the decision by Twitter, Facebook and a whole host of other platforms to ban the president in the wake of the Capitol riot. Jonathan, Evelyn and Quinta take a step back and situate what’s happening within the broader story of internet governance. They talked about how to understand the bans in the context of the internet’s now not-so-brief history, how platforms make these decisions and, of course, Section 230 of the Communications Decency Act.

Listeners might also be interested in Zittrain's February 2020 Tanner Lecture, "Between Suffocation and Abdication: Three Eras of Governing Digital Platforms," which touches on some of the same ideas discussed in the podcast.

Direct download: Jonathan_Zittrain_on_the_Great_Deplatforming.mp3
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Jack Goldsmith sat down with Brian Kalt, a law professor at Michigan State University, to talk about an important issue in the news this week: late impeachments. In the current context, the issue of a late impeachment would arise if the House of Representatives impeaches President Trump before he leaves office but the Senate does not hold the trial for Trump, with possible conviction and disqualification from further office, until after he leaves office. They discussed how the Constitution and its historical background and structure inform this question, as well as what the practice of impeachments over 230 years teaches us. They also talked about how former President Trump might challenge any trial, conviction or disqualification that takes place after he leaves office.

Direct download: Late_Impeachments.mp3
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Donald Trump is headed for a second impeachment, a whole lot of people have been charged in federal and local courts in Washington, and an even larger number are probably about to be. What's more, the president's social media accounts have vanished; in fact, one of the very networks on which the president's supporters organized has itself disappeared. To talk through it all, Benjamin Wittes sat down with Lawfare's Alan Rozenshtein, Bryce Klehm, David Priess, Quinta Jurecic and Susan Hennessey. They talked about whether impeachment is inevitable now, if the article of impeachment Congress is considering is well-crafted, who has been charged and who is going to be charged, and what we should make of the actions of the tech companies against the president and his allies.

Direct download: The_Incredible_Vanishing_President.mp3
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Jamie Gorelick was the deputy attorney general under President Bill Clinton and Attorney General Janet Reno. In that capacity, she hired as her top aide and adjutant one Merrick Garland. This was before Garland became a D.C. Circuit judge, but it was a fateful period for the department, a period in which Garland supervised some high-profile cases, including the investigation of the Oklahoma City bombing. Benjamin Wittes sat down with Gorelick to talk about Garland's history at the department, his selection as attorney general and the team that will surround him.

Direct download: Jamie_Gorelick_on_Merrick_Garland.mp3
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The storming of the Capitol on Wednesday was a catastrophic failure of protective law enforcement, as rioters overran Capitol Police barricades and gained access to a building that a lot of police were supposed to be protecting. How did it happen? Who screwed up? And what can be done about it? Benjamin Wittes sat down with Fred Burton, the executive director of the Center for Protective Intelligence at Ontic and a former protective officer; Garrett Graff, a journalist who covers federal law enforcement and who wrote a book about continuity in government; and Lawfare's executive editor Susan Hennessey. They talked about how bad the failure was on the part of the Capitol Police, who is responsible for it, what can be done now to bring the perpetrators to justice and how we should think about changing security protocols on Capitol Hill going forward.

Direct download: Who_Let_the_Barbarians_Through_the_Gates.mp3
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Today a mob of Trump supporters stormed the Capitol following a rally at which the president spoke. Congressional efforts to count the electoral votes were suspended, and an armed standoff, in which at least one person was killed, ensued. To discuss the matter, Benjamin Wittes sat down with Lawfare managing editor Quinta Jurecic; Lawfare chief operating officer David Priess; Georgetown's Mary McCord, who used to run the National Security Division at the Justice Department; and Daniel Byman, a professor at Georgetown and Lawfare's foreign policy editor.

Direct download: Insurrection_at_the_Capitol.mp3
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It is electoral count voting day, and members of Congress in a joint session will open and count the electoral votes and declare Joe Biden and Kamala Harris the winners of the election. It will not be without controversy, however, as members from both houses plan to object, forcing debate, and as the Proud Boys descend on Washington. In anticipation of turmoil inside and outside of the Capitol, Benjamin Wittes sat down with Lawfare senior editor Scott Anderson, Brookings and Lawfare congressional guru Molly Reynolds, and law professor and election law specialist Ned Foley of The Ohio State University Moritz College of Law. They talked about what the rules are for counting electoral votes, how much latitude they have, what could really happen today and what role, if any, Mike Pence could play in the disposition of the final stage of the presidential election.

Direct download: Counting_the_Electoral_Votes.mp3
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Jack Goldsmith sat down with Margaret Love, the United States Pardon Attorney in the Justice Department from 1990 to 1997. They discussed Donald Trump's very controversial pattern of pardons and commutations, Trump's circumvention of the traditional pardon attorney process and the historical operation of that process prior to Trump. They also discussed various potential reforms of the process for determining pardons and commutations.

Direct download: The_Role_of_the_Pardon_Attorney.mp3
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Alexander Vindman sat down with Dr. Geoffrey Gresh to discuss his new book, "To Rule Eurasia's Waves: The New Great Power Competition at Sea." Dr. Gresh is a professor of International Security Studies at the College of International Security Affairs (CISA) at the National Defense University in Washington D.C., with a primary research focus on maritime affairs. He has also served as the chair of the Department of International Security Studies and as CSIA's director for the South and Central Asia Security Studies program. They discussed Russia's, China's and India's interests in their near-seas competition cooperation and the implications of great power competition for U.S. policy.

The views expressed by Dr. Gresh in this episode do not represent the U.S. government, the Department of Defense or National Defense University.

Direct download: To_Rule_Eurasias_Waves.mp3
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