Compiled by Sarah Willrich.
Articles
The Supreme Court’s Ballroom Non-Decision
Molly Roberts broke down the Supreme Court’s decision allowing the construction of the White House ballroom to proceed, holding that the plaintiff likely did not have standing to sue. Roberts analyzed previous cases on aesthetic standing and explained why the Court’s decision failed to clarify who has the right to sue based on aesthetic, cultural, or even environmental harms going forward.
Instead, the justices simply declared that the National Trust’s objections to the ballroom fall in the insufficient category of (reaching back to
Valley Forge) “psychological consequence presumably produced by observation of conduct with which one disagrees”—rather than the sufficient category of aesthetic harm. Why? Well, according to the Court, “mere offense, disagreement, or distaste does not qualify as a concrete and particularized injury under Article III.” How is this different from the environmental cases? Those involved “morethan mere offense,” the majority says, rendering them concrete and particularized. What more? Duh—injuries stemming from causes other than “offense, disagreement, or distaste.”This remarkable bit of circular reasoning reduces to every parent’s favorite logical fallacy: Because I said so.
Mark Pollack characterized the Trump administration’s pattern of threatening organizations and individuals to achieve favorable deals as “governance by shakedown.” Despite the process’s frequent illegality and occasional failure to achieve the administration’s preferred direct effects, Pollack argued it has still succeeded in extracting monetary gains and creating a broader environment of intimidation that encourages self-moderation.
This temporal asymmetry explains why legally weak, even blatantly unconstitutional, measures can be effective instruments of coercion: The target must decide whether to accommodate now or gamble on relief later. Temporary restraining orders in the law firm and university cases mattered precisely because they shortened that gap; the months-long delay before the Supreme Court’s tariff ruling mattered because it did not. Governance by shakedown exploits not only executive discretion, but time: The administration can impose pain quickly, while constitutional guardrails work slowly.
White House Unveils Program to Authorize Private-Sector Cyber Surveillance and Disruption Operations
Aaron R. Cooper and Philip Chertoff explained the legal complications, including surveillance protections for U.S. persons and the difficulty of accurately targeting foreign criminal organizations, that companies must consider if they choose to conduct authorized cyber operations under the White House’s new plan. While the plan’s implementation is still being determined, Cooper and Chertoff advised companies to start assessing what risks participating in the plan could expose them to.
A critical element is how the memorandum defines potential targets. Under the memorandum, a CE-TCO is defined as “any foreign group that conducts cyber-enabled crime against the United States Government, a United States person, or United States interests, and that is not an institutional part of a foreign government or wholly operated under a foreign government’s direction.” To this definition, the memorandum adds an important presumption: A foreign group is assumed not to be state-connected unless clear intelligence establishes such a connection. The addition of this presumption is likely in recognition of a practice in which foreign adversaries have used non-state actors as proxies to execute cyberattacks against the U.S., where the link is difficult to prove. This specific callout may suggest a priority in disrupting such nation-state proxies.
Podcasts
Lawfare Daily: How Terrorist Groups are Using Artificial Intelligence: Daniel Byman spoke with Tricia Bacon and Antonia Juelich about how different terrorist groups are using artificial intelligence (AI) and how governments are employing AI to fight them. They discussed how Boko Haram and other terrorist groups are using AI to become more deadly, the problems terrorist groups run into with using AI, the risk of catastrophic AI-enabled terrorism, what governments and companies need to do better, and more.
Scaling Laws: Building AI Assurance Ecosystem: Bri Treece and Rob Slone joined Kevin Frazier to discuss a neglected layer of AI governance: the organizations that deploy AI in real-world products, services, and operations. They considered why PACT AI was formed, what AI assurance can learn from other industries, why evaluating AI cannot be a one-time exercise, the major barriers facing the broader AI assurance ecosystem, and more.
Videos and Webinars
Lawfare Live** : Supreme Court Allows White House Ballroom Construction to Continue: **In a special livestream,
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