Rational Security: The “Techs Appeal” Edition

The Lawfare Podcast

The episode explores critical shifts in national security and legal norms within the current administration. The hosts discuss a Supreme Court

Key takeaways

• The Supreme Court granted certiorari in a case regarding third-country removals, allowing the policy to continue temporarily through December.
• A controversial provision in the SCOTUS order allows the government to propose additional questions for the case's disposition.

Main topics

• Third-country migrant removals
• Supreme Court shadow docket

Notable quotes

MAGA gatherings are fundamentally the Mos Eisley Cantina equivalent of counterintelligence concerns.

Conclusion

The discussion highlights a profound concern regarding the institution

Transcript preview

Speaker 2 (0:00) U.S. voters abroad, have you got your ballot yet? All states are now sending ballots to overseas voters. So if you want to vote this year, you should request your ballot right away. Go to votefromabroad.org and click Request My Ballot. Ask to receive it by email. Questions? Ask our support team directly. Don't miss this chance to shape the future. Don't delay. Votefromabroad.org. Speaker 3 (0:28) So we're all living in the new era of, I guess, super intelligence now. How does that feel? How does that sit with you? It feels like it's promising more than artificial intelligence. I'll take that. I get the selling point. Speaker 6 (0:43) All I'll say is there was before I heard the name change and after. That's how I'm dividing my life now. AI times and SI times. I Speaker 3 (0:53) feel like there's been a lot of talk about the Sports Illustrated branding transfer that there's confusion about whether there will be a swimsuit issue at some point of SI. This was part of the consideration that goes in. It does seem like a real branding choice to be made. Are we going to see it reflected? Are they signing a big accord with all the AI leaders, I think, today? Is this going to be a superintelligence accord as opposed to an AI accord, which would be awkward for XAI and OpenAI, I suspect? Speaker 5 (1:19) I've read that a number of the companies have already indicated they are going to start using the new nomenclature. They got to get their IPOs approved. Yeah. As a public service, I'm going to suggest that maybe they don't do a swimsuit issue. I think what they need to do is a wedding issue and begin with... this subtle tastes and nuance presentation that we all saw at Alina Haba's recent wedding. And maybe that could be the first special issue of the new SI. I Speaker 3 (1:52) mean, these branding enterprises are kind of extraordinary. This one really stands out to me as like such a Trump product. It's kind of amazing. Well, Speaker 6 (2:00) I think it's actually a beautiful demonstration of democratic will, because I don't know if you saw where this originated with Trump's posted polls, I think, on Truth Social, where he was sort of crowdsourcing the new name. Speaker 3 (2:14) No, really? The American Speaker 6 (2:16) people who were on Truth Social. Yeah, I was pulling up the other options. The options were superior intelligence, extreme intelligence, and supreme intelligence. I guess he went with none of them. They're all S, though. They all Speaker 5 (2:30) had Speaker 6 (2:30) to be an Speaker 5 (2:30) S. Committed to this SI thing. I'll confess, when I saw that they were going to change AI to SI, my immediate thought was of the espionage role-playing game that I think only two of us grew up with, which was called Top Secret SI. And Speaker 3 (2:46) was pretty awesome. And the honest to God truth is, I don't know what the SI stands in for that either, and it never bothered me. Speaker 5 (2:52) I'm almost positive it was special intelligence or secret intelligence. But the game was perfect because it hit on... every single Cold War trope of the intelligence war between the West and the Soviet Union that you could think of. There were modules in East Berlin. There was an adventure set on the Orient Express. It was this great combination of a John le Carre seedy atmosphere with the hijinks of a James Bond film. Speaker 3 (3:25) And that's what we're going for now in the AI world. Exactly. That sort of blend. of sex appeal and cutting edge technology. That's what the president is bringing to us. Speaker 3 (3:40) Hello, everyone, and welcome back to Rational Security, the show where we invite you to join members of the Lawfare team as we try to make sense of the week's big national security news stories, whether they are in our lanes or not. I am thrilled to be back here as your host, Scott R. Anderson, with another panel of my wonderful Lawfare colleagues to break down some of the week's big news stories. Joining me this week is Lawfare Managing Editor Tyler McBride, back from jaunts around, well, not around the world, but around the country this time, and back with us in the studio. Tyler, thank you for joining us. Speaker 6 (4:10) Thank you for having me. I'm actually back on another jaunt. I'm in Atlanta for a couple of days, but. Are Speaker 1 (4:14) you going to a Hawks game, Tyler? Speaker 6 (4:17) The question we're all asking. Speaker 3 (4:20) I am. Yeah. Speaker 1 (4:22) Maybe you'll see Jack Smith there. Speaker 3 (4:24) Just be sure you clarify very carefully when you text us about it, which game and where and when you will be. Just to save a lot of people a lot of embarrassment a couple of years from now. Okay. Or actually. Speaker 5 (4:37) Don't clarify. The entertainment value for society writ large will be so much greater if there is some degree of confusion on this. Speaker 3 (4:46) Yes, do it for the late night host, if nothing else. And joining us as well, as of course, you've already heard, it's lawfare senior editor and court reporter extraordinaire, Anna Bauer, back on the podcast for the first time in a little while. Anna, thank you for joining us as well from your beautiful brick-laden abode. Great to have you back on the pod. Speaker 1 (5:02) Thanks. Glad to be here. Joining you from my... brick-laden palatial mansion. Speaker 3 (5:08) It is. There's just so much brick there. That is a true Brooklyn experience. I love it. I think this is the angle where I've truly got it. And it looks like you're in an alleyway or a row house in Gangs Speaker 1 (5:20) of Speaker 3 (5:20) New York, which I kind of love. Is Speaker 1 (5:21) that a Speaker 3 (5:21) skateboard on Speaker 1 (5:22) the Speaker 3 (5:22) wall? Just Speaker 1 (5:22) like stripped Speaker 3 (5:22) brick with a skateboard on the wall. Yeah. Speaker 1 (5:24) It was there when I got here, the skateboard was. But yes, that is a skateboard. Speaker 3 (5:32) Anna's not secretly a skate head. This is how she gets back and forth to the office and to the courtroom is on a skateboard. Speaker 5 (5:38) I'm going to take issue with the terminology. Technically, that is only the deck. It is not the entire skateboard. Oh, we Speaker 1 (5:46) got a real skater boy here. Did you go to Speaker 3 (5:49) the Speaker 1 (5:49) band's skate park? Speaker 3 (5:51) The number eight B-O-I is how we're spelling that one, folks, right there. And that skater boy is, of course, Lawfare Public Service Fellow, Lawfare Senior Editor, what am I saying? Former Public Service Fellow, now Senior Editor, Mike Feinberg, back on the podcast as well. Mike, thank you for joining us. Thanks for having me. And lending your expertise in all things from high school so far on this episode, from skateboards to role-playing games. We're happy to have you on board to lend your expertise. Because we have a couple of stories coming in this week. Some of the legal domain, all kind of the legal domain. This is Lawfare after all. Mostly on the domestic side, all pretty interesting and novel and not at least a little bit entertaining. So let's get right into it. First topic for this week, third country's the charm. On Tuesday, the Supreme Court cleared the way for the third time for the Trump administration to resume deporting migrants to third countries, with which they have no connection, staying a lower court ruling that found the policy unlawful and agreeing to hear the case on the merits in December. The decision comes days after the administration quietly flew a group of Somali men, some with no criminal records who had been held in Guantanamo Bay for a month after being told their plane was only stopping in Cuba to refuel, to Mogadishu on a flight that departed hours after an appeals court made clear the third country removal policy was blocked. It also comes as lower courts are increasingly finding the administration in contempt for violating their orders in deportation cases, and as the full D.C. Circuit weighs whether Judge James Boasberg can continue his contempt inquiry into last year's Alien Enemies Act flights. What does this pattern tell us about the administration's relationship with the courts and how far it is willing to push its immigration agenda? Topic two, here comes the bribe. Last week, ProPublica revealed that by late 2024, FBI anti-corruption agents believed they had enough evidence to seek a sweeping bribery investigation stemming from a defense contractor's illegal donations to Maine Senator Suzanne Collins and other members of Congress, only for the probe to die when the Trump administration gutted the FBI and Justice Department units that handle public corruption cases. Collins denies any wrongdoing and has called the contractor a liar, but the story has become a central issue in her tight re-election race. It's also just the latest in a string of stories raising questions about public integrity in and around the Trump administration, from the Putin-linked Russian oligarch that secretly bankrolled Donald Trump Jr.'s wedding, to the Cash Patel and Todd Blanche-studded wedding of former U.S. Attorney Alina Haba to a Turkish businessman with close ties to the Erdogan government, where mixed martial arts manager Abdelaziz Ali, a former FBI source and suspected double agent, at least as reported, was also in attendance. What do these stories tell us about what happens when no one is minding the store on public corruption and public integrity? And how worried should we be about who is buying access to the president's inner circle? And topic three, manufactured content. President Trump escalated his war on the press this month, banning CNN, MSNOW, and Politico from the White House and having the Secret Service seize the reporters' press passes over what he described as years of unfair coverage. A federal judge has since temporarily ordered their access restored, finding the ban likely violated their due process rights. But the White House isn't just restricting who gets to tell its story, it's also paying to tell its own, launching a series of taxpayer-funded TV ads that feature President Trump and closely track his campaign messaging. including one nearly identical to a 2024 campaign spot just weeks before the midterms. The White House insists that these are merely public service announcements. Is the administration breaking longstanding norms in an effort to take control of the narrative? And are there any legal limits that might stop it? So for our first story, Anna, I want to come to you first. We got a big Supreme Court ruling coming down just in the last few days. Talk to us about this DVD case, where we are. Let's use that as an entree to talk about this topic. Speaker 1 (9:19) Yeah, so we did. When you say we got a big ruling in the DVD case, Scott, I will just go ahead and mention that this big ruling is about one paragraph long because it came through on the shadow dog head. But it is indeed a significant, although not lengthy, order from the Supreme Court. So the case background here is quite complicated, and I'm going to gloss over a lot of the details because we've talked about it in depth on some of our other lawfare programming, including Lawfare Live. So I suggest that people join us there this week if they want to hear in more detail from Roger Parloff, who's been really covering this case in detail. But the DVD case is a case that was brought. by a group of immigrants who fear removal to third countries under the policy that the Trump administration has implemented, by which people have been removed to these third countries that they often have no connection to. In some instances, there's been reports of mistreatment or... even abuse in some instances. There were reports of people being hooded and bound and beaten by police in one of the destinations to which they were removed, things like that. And as a part of this policy, there's often, as I mentioned, little to no notice that's given. And so this litigation has been ongoing since the Trump administration started doing this back in 2025. And since then, you know, again, I'm going to gloss over some of the details here. But what you need to know is that it's twice before been up to the Supreme Court, where there will be a lower court restriction on removing people to third countries with little or no notice, an opportunity to be heard and all those things. It'll go up to the Supreme Court, and then the Supreme Court will, you know, allow third country removals to be restarted. And there's been different iterations of this on different claims that the plaintiffs in this case have raised. And yesterday, the Supreme Court gave us the latest cycle of that in which, you know, the case again went up to the Supreme Court and the Supreme Court again. has allowed third country removals to continue, at least for the next few months temporarily. But what's important here is that the court also granted cert in the case. So it seems that we are finally going to have the court weigh in on the merits because this has all been happening on the shadow docket. And so in this one paragraph ruling, cert is granted. There's going to be December 2026 oral argument in the case. And interestingly, and also I think concerningly, there's a really weird line here in the court's order in which there's this direction. And I Speaker 6 (12:26) have it up because I was also very curious what people made of this. I believe it was the fourth question. It was a bit of like a meta question presented that it says. Number four, such other questions that the government determines are appropriate for the proper disposition of the case. Speaker 1 (12:42) Right. Thank you, Tyler. I appreciate that. Yes. So there's this kind of like weird direction that I have never seen before in which, you know, the government's kind of being given license to determine and talk about kind of whatever it wants. So I'd be curious if you guys have seen anything like that. The bottom line here is just that at least for the next few months, third party removal policy continues to be in effect. And this is all happening. I should also mention at the same time yesterday, we heard oral argument in the DC Circuit. Another case that has gone up several times on appeal, not yet all the way to the Supreme Court. Unless you count some of the underlying litigation, it's complicated. But this is Judge Boasberg's effort to do a contempt inquiry in relation to the Alien Enemies Act litigation in JGG. That was the one where people were on flights being sent to El Salvador. Judge Boasberg issued this oral order saying, you know, turn those flights around, don't disembark people, and I'm going to... enter a written order memorializing all of this. He then enters a written order saying these people shall not be removed from the United States. But sure enough, people are removed from the United States. They are disembarked off of planes. They are sent to El Salvador to a notorious prison there. And Judge Boasberg initiated a contempt inquiry. which now was up on appeal about this question of, for a second time, on this question of, you know, can he proceed with this inquiry and to what extent? So yesterday we had a lot of immigration-related actions in the appeals courts, and I think that it's certainly an interesting time to be thinking about. Speaker 1 (14:58) I'll Speaker 5 (14:59) confess, regardless of either side's merits, I find SCOTUS's invitation seemingly only to the government to enter any other questions presented they may think relevant, really discomforting. I've never seen that sort of direction in a court order to a single party. And while it doesn't obviate the cases and controversies requirement for Supreme Court jurisdiction, normally to have a controversy, you have to have a clearly defined issue on which two parties agree upon. that there is a dispute. Allowing one party to just name issues without the input of the other really seems to be tilting the playing field in at least some sense and giving an advantage to that party to sort of bring in anything they may help their position while denying the same opportunity to their opponents. It's just something that strikes me