Compiled by Sarah Willrich.
Articles
USPS Plays a ‘Puzzle Game’ With the Right to Vote
Molly Roberts reported from the U.S. District Court for the District of Massachusetts, where Judge Indira Talwani heard revised motions for a preliminary injunction to halt the U.S. Postal Service’s implementation of President Trump’s executive order on mail-in voting.
We’re “not playing an intellectual puzzle game,” Judge Talwani reminds him. “We’re talking about people’s right to vote.” She says that having USPS tell states whether noncompliant ballots have been identified and what batches they would return as a result ought to do just as well as a “laboratory” or “experiment,” without risking disenfranchisement.
Which leads to the real question: Why would you want less of a right to vote in your states? The response is, again, that no disenfranchisement has been proven—and that what is desired is to stop cities and counties from submitting flawed ballots. “You can do that with state law,” says Judge Talwani. So the
realreal question becomes: Why would you want election integrity in your state to be decided by the Postal Service?
Free Speech, Deportation, and the Suspension of Habeas Corpus
Jonathan Hafetz analyzed the risks to habeas corpus posed by detaining noncitizens in cases related to their political speech. He explained that the detention in these cases represents a distinct constitutional injury that should be addressed through separate proceedings from immigration court. Hafetz warned that the increasing conflation of detention and removal in the immigration context risks eroding critical due process protections.
More fundamentally, eventual judicial review of removal cannot substitute for immediate judicial review of detention. Detention is a distinct constitutional injury, and a petition for review becomes available only after a final removal order, potentially months or years after the detention has begun. As Michael Dorf notes, the logic of the Second and Third Circuits would deny habeas whether the resulting detention lasted “16 days, 16 weeks, 16 months, or 16 years”—and what’s more, the executive effectively controls the timing of immigration proceedings. Vindication on an eventual petition for review, in short, cannot remedy an unconstitutional imprisonment that has already occurred. As the Fourth Circuit recognized in
Suri, for a person challenging present detention, meaningful judicial review is effectively “now or never” (borrowing a phrase from an earlier Third Circuit case that theKhalilpanel took awkward pains to distinguish). A scheme that leaves the legality of executive detention unreviewed while removal proceedings run their course therefore does not merely channel habeas into another forum; it creates a gap in the constitutional fabric of the writ.
China’s Private-Sector Botnets Are Worth Disrupting
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren** **discussed the threat from China’s botnets, a hack at the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, the launch of a new water infrastructure cybersecurity initiative, and more.
It’s clear that China is very effectively leveraging its commercial sector to develop these cyberespionage botnets. As well as QTFY, Raptor Train was also attributed by the U.S. government to a Chinese technology company.
In addition, QTFY itself is also using commercial services. To backhaul traffic into China, it buys what Lumen describes as “high-tier corporate subscriptions” to a Chinese commercial VPN service, Fastlink. Lumen believes it does this because it is easier than having to compromise and manage even more devices in a relay network.
Podcasts
Lawfare Daily** : Mike Schmidt Talks CHIPS and U.S. Industrial Policy: **On the first episode of the
Videos and Webinars
Lawfare Live: The Trials of the Trump Administration, Sept. 4: Benjamin Wittes sat down with Roberts, Anna Bower, Roger Parloff, and Eric Columbus to discuss the latest developments in litigation surrounding the Trump administration, including updates in the litigation over Trump’s executive order targeting mail-in voting, the new executive order restricting birthright citizenship, and more.
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