National Security

The Trump Administration has invoked controversial national security theories to justify its actions.

Trump Isn't The Only Government Official Not Doing Enough To Protect Public Health

3/12/20  //  Quick Reactions

The President has been harshly criticized for his inadequate response to coronavirus. But state and local officials have the legal authority to do much more than they are doing to protect health and safety. They need to act now, with or without the President's support.

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Amazon vs. Trump

1/9/20  //  In-Depth Analysis

On this week’s Versus Trump, Jason, Easha, and Charlie consider a new lawsuit by Amazon, in which the company claims that it was illegally denied a $10 billion Pentagon contract because of President Trump's stated dislike of Amazon founder Jeff Bezos. And the return briefly to the question of Bolton's potential testimony at the Senate impeachment trial. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Versus Trump: Watch Out, Watch List

9/12/19  //  Commentary

On this week's episode of Versus Trump, Charlie and guest-host Alexandra Brodsky discuss a recent opinion invalidating the FBI's terrorism watch-list. They discuss the implications of the opinion for the Trump administration (and beyond), the merits (and demerits) of the court's reasoning, and all sorts of other cool stuff, including how annoying it is when people think they're important enough to be spied on by the FBI. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Versus Trump: Huawei (or China??) Versus Trump

3/14/19  //  In-Depth Analysis

On this week's episode of Versus Trump, Charlie, Easha, and Jason discuss a new lawsuit by Huawei against various Trump Administration officials, plus they delve into international extradition law and look at the case of the company's detained CFO. Listen now!

Easha Anand

San Francisco

Jason Harrow

Gerstein Harrow LLP

Charlie Gerstein

Gerstein Harrow LLP

Rand Paul Must Reverse His Position On Judge Kavanaugh’s Supreme Court Nomination – Or Betray His Anti-War Legacy

9/11/18  //  Commentary

By Daniel Levine-Spound: Rand Paul’s support for Kavanaugh constitutes a betrayal of his opposition to the United States’ ever-expanding and seemingly interminable 'War on Terror'

Take Care

The Perils of National Security Exceptionalism

4/23/18  //  Commentary

Whatever side the Court takes in the travel ban litigation, it should renounce national security exceptionalism

Ingrid Brunk Wuerth

Vanderbilt Law School

Ganesh Sitaraman

Vanderbilt Law School

Updates | The Week of January 22, 2018

1/28/18  //  Daily Update

President Trump's Guantánamo "policy" is best understood as an extension of his anti-Muslim bigotry, wrote Nimra Azmi and Sirine Shebaya at Take Care. The terrorist watchlist statistics from last week's DOJ and DHS exaggerate the threat of terrorism, argued Harsha Panduranga at Just Security. The Pentagon's new National Defense Strategy contains notable omissions related to climate change and the use of special operations forces.

Updates | The Week of January 15, 2018

1/14/18  //  Daily Update

In a series of tweets, President Trump wavers between opposition and support of FISA reauthorization. On the 16th anniversary of the prison’s founding, Guantanamo Bay prisoners file mass habeas petition.

Updates | The Week of December 18, 2017

12/24/17  //  Daily Update

The Trump Administration unveiled its new National Security Strategy. A majority of the United Nations General Assembly voted to rebuke America's decision to recognize Jerusalem as the capital of Israel and to relocate the U.S. Embassy.

Update | The Week of November 27, 2017

12/4/17  //  Daily Update

Congress is considering a significant expansion of the NSA's surveillance power. President Trump responded to North Korea's testing of a new intercontinental ballistic missile.

Jeffrey Stein

Columbia Law School

Updates | The Week of November 20, 2017

11/26/17  //  Daily Update

State Department officials accused Secretary of State Tillerson of several rules violations regarding child soldiers. Multiple sources are contemplating ways to constrain the President's ability to use nuclear weapons.

Updates | The Week of October 23, 2017

10/31/17  //  Daily Update

Reports continued to trickle out regarding the ambush of a Special Forces team in Niger. The ambush prompted commentary on the President's legal authority for military operations overseas.

Improper Commands from President Trump's Employees?

3/16/17  //  Commentary

Key White House personnel might be violating important limits on their lawful authority.

Nikolas Bowie

Harvard Law School

Guantánamo and President Trump’s Anti-Muslim Animus

1/24/18  //  Commentary

By Nimra Azmi and Sirine Shebaya: Trump's position on Guantánamo perfectly aligns with his habitual rejection of the idea that Muslims accused of terrorism are entitled to any constitutional protections

Take Care

Cruise Missiles More Dangerous Than the "Nuclear Option"

4/10/17  //  Commentary

If Congress does nothing now to further delineate the scope of presidential authority to deploy military force, it will effectively be forfeiting, now and forever, its constitutional authority to check presidential moves short of all-out state-to-state war.

Peter M. Shane

Ohio State, Moritz College of Law

Justice Gorsuch, Executive Power, And Muslim Ban 2.0

3/20/17  //  In-Depth Analysis

A careful review of Judge Gorsuch's record reveals strong reason to believe that he would vote to uphold President Trump's revised Muslim Ban (and potentially many other executives abuses, too).

Leah Litman

Michigan Law School

Amir Ali

Roderick & Solange MacArthur Justice Center

Donald Trump's New Intelligence Slush Fund

1/22/18  //  Commentary

The continuing resolution that was signed by President Trump contains a provision that permits his intelligence agencies to spend billions of dollars on anything they want, without having to inform Congress about what they are doing. This seems like a bad idea.

Ian Samuel

Harvard Law School

International Human Rights Law in the Trump Era

3/29/17  //  In-Depth Analysis

The Trump Administration’s actions thus far are not just an attack on human rights norms. And they’re not merely a rejection of international law. They’re also an assault on our national security and foreign policy.

The President’s Dilemma

3/17/17  //  Commentary

An emergency appeal on the Muslim Ban may be both rational and his worst outcome.

Amir Ali

Roderick & Solange MacArthur Justice Center

The Trump Administration’s Immigration-Related Detentions

3/24/17  //  Commentary

The Supreme Court is considering a major constitutional challenge to federal immigration detention policies. Trump’s recent executive orders make that case even more significant.

Leah Litman

Michigan Law School

The Trump Administration May Already Have What It Needs for a Serviceable (and Unconstitutional) “Muslim Registry”

4/19/17  //  In-Depth Analysis

The Trump Administration may already have the tools it would need to predict with high accuracy the religious identity of a significant percentage of U.S. citizens and visiting Muslims. And software engineers, not lawyers, may be our first line of alarm and defense.

Trump and North Korea: Where's Congress?

8/13/17  //  Commentary

Guest poster Eric Segall argues that Congress must act now to ensure that the President does not unilaterally commit an act of war without Congressional consent.

Take Care

Why Trump's Travel Ban Statements Compel a Finding of Improper Purpose

4/6/17  //  Commentary

Trump's statements about the revised travel ban overwhelmingly evidence a purpose at odds with the Establishment Clause. And few, if any, of those statements evince actual, substantive national security or foreign affairs objectives that explain the bizarre scope of his order.

Ten Questions for a New FBI Director

6/6/17  //  Commentary

By Allison Murphy: Given President Trump’s documented and acknowledged efforts to interfere with the independence of the FBI, the Senate should presume that could continue under a new FBI Director. It is therefore incumbent upon Senators to ensure that any Trump nominee for FBI Director commits to certain baseline aspects of independence and impartiality before any new nominee is confirmed. Here are 10 questions that require answers.

Take Care

Versus Trump: Borderline Searches + Response To First Mondays

11/16/17  //  Commentary

On this week’s episode of Versus Trump, Jason and Charlie discuss a new lawsuit that forces courts to answer the question of whether the federal government needs a warrant to search people's electronic devices at the U.S. border, and they also respond to a discussion on the Supreme Court podcast First Mondays regarding the government's recent filing in the Hargan v. Garza abortion case. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

Trump's Mistaken Signing Statement on Marijuana Enforcement

5/16/17  //  Commentary

Trump suggested in a recent signing statement that he could disregard an appropriations restriction on federal marijuana enforcement. But Trump is mistaken.

Zachary Price

U.C. Hastings College of the Law

Why Courts Have Probed Trump’s Motives for the Travel Ban

4/4/17  //  Commentary

Perceptions of presidential bad faith have given judges the fortitude to do what the law already demands of them, even though their actions might prompt the President to bash them by name on TV or Twitter.

Motive Matters in Assessing the Travel Ban

3/20/17  //  Commentary

To the extent that Trump’s statements about the travel ban shed light on why the executive orders were issued—and they surely do—those statements are material to the constitutional analysis.

Richard Primus

University of Michigan Law School

Versus Trump: California Versus The Wall [UPDATED WITH EPISODE]

3/8/18  //  Commentary

On a new episode of Versus Trump, Easha, Jason, and Charlie discuss a recent district court opinion that rejected California's challenge to the Trump Administration's expedited border wall projects in California. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The World Is Not Made Brand New Every Morning

3/20/17  //  Commentary

Judge Kozinski thinks that we cannot account for President Trump's campaign statements in the Muslim Ban cases. That is wrong. Courts can, and should, reckon with this history in assessing whether Trump's ban comports with religious neutrality.

Jonathan Taylor

Gupta Wessler PLLC

Trump’s Approach to Crime & Punishment

3/16/17  //  Commentary

The president has continued existing policies, but also signaled a misplaced (and dangerous) reliance on immigration enforcement and incarceration to protect the public.

Chiraag Bains

Harvard Law School

Faith in the Ninth Circuit

3/16/17  //  Commentary

An analysis of Judge Bybee's dissent from denial of rehearing en banc in Washington v. Trump, and some predictions about the future of President Trump's revised entry ban.

Daniel Hemel

University of Chicago Law School

Updates | The Week of July 3, 2017

7/9/17  //  Daily Update

The U.S. is weighing options to respond to North Korea’s latest missile test.

Updates | The Week of September 25, 2017

10/1/17  //  Daily Update

Tensions with North Korea escalated this week, prompting North Korea's foreign minister to claim that the U.S. had declared war and that a strike against the U.S. mainland was "inevitable." Foreign leaders warned President Trump of the consequences of violating the Iran nuclear agreement.

Updates | The Week of April 17, 2017

4/23/17  //  Daily Update

The Administration continues to treat national security as "security theater" with a stunning "indifference to facts, accountability, and democratic oversight," argue critics.

Updates | The Week of June 5, 2017

6/11/17  //  Daily Update

President Trump's national security team was "blindsided" by his failure to reaffirm NATO Article 5, and commentators argue that President Trump's reaction to the London attacks portend his reaction to future attacks.

Updates | The Week of April 10, 2017

4/16/17  //  Daily Update

This week, commentary focused on U.S. military action against Syria. Joshua Matz and Marty Lederman both considered the legal reasoning for the strikes on Take Care.

Updates | The Week of July 31, 2017

8/6/17  //  Daily Update

Secretary of State Tillerson indicated that the United States is not seeking regime change in North Korea. Commentary continued on the future of the Iran nuclear deal. The United States issued sanctions against Venezuelan President Nicolás Maduro.

Updates | The Week of May 1, 2017

5/7/17  //  Daily Update

President Trump's harsh rhetoric may be a gift to terrorist organizations abroad. While some intelligence agencies seek to dial back surveillance, it will likely only grow if Congress authorizes more options for the use of military force.

Take Care

Updates | The Week of October 16

10/21/17  //  Daily Update

Prison guards at Guantanamo Bay seized court-approved, non-networked computers and hard drives issued to the accused 9/11 attack plotters to prepare for their death-penalty trials; coverage of military proceedings at Guantanamo has increased following the denial of cert in the case of Abd Al-Rahim Al-Nashiri. Senator John McCain (R-Ariz.) threatened to subpoena Trump administration officials for information on the attack in Niger that killed four U.S. service members.

Updates | The Week of May 8, 2017

5/14/17  //  Daily Update

President Trump signed an executive order on cybersecurity. The Department of Homeland Security will ban laptops and other large electronic devices in the cabin on flights from Europe.

Updates | The Week of June 19, 2017

6/25/17  //  Daily Update

The President's understaffed national security team aims to change import policies in the name of safety. Local law enforcement communities should instead be a focus in the fight against ISIS.

Updates | The Week of October 2, 2017

10/8/17  //  Daily Update

Secretary of State Tillerson denied reports of a conflict with the White House. The future of the Iran nuclear deal remains unclear.

Updates | The Week of March 20, 2017

3/26/17  //  Daily Update

This past week, America and Britain barred personal electronic devices on flights from several Muslim-majority countries. Ivanka Trump's proposed role within the White House may also pose a national security threat.

Updates | The Week of August 28, 2017

9/3/17  //  Daily Update

Trump's pardon of former sheriff Joe Arpaio sets off a firestorm; another battle over Trump's immigration ban is heard by the Ninth Circuit; and investigators and journalists turn up more evidence of Trump's business dealings with Russia.

Updates | The Week of June 12, 2017

6/18/17  //  Daily Update

Secretary of State Rex Tillerson defends proposed cuts to his department, arguing it should focus on a narrower conception of security.

Updates | The Week of May 29, 2017

6/4/17  //  Daily Update

The administration continued its hunt for a new FBI director, as it struggles to fill key posts across the executive branch. A certiorari petition at the Supreme Court asked it to resolve a long-running dispute over the jurisdictional scope of the Guantanamo military commissions. Meanwhile, the administration decided against a proposed ban on laptops on flights to the United States from Europe.

Helen Klein Murillo

Harvard Law School '17

Updates | The Week of August 21, 2017

8/24/17  //  Daily Update

The Trump administration announced plans for the expansion of the US military presence in Afghanistan, and concerns about rising tensions between the US and North Korea continued.

Updates | The Week of July 10, 2017

7/16/17  //  Daily Update

The Trump Administration moved to restrict agencies from using products from a Russian cybersecurity firm due to hacking concerns. Commentary continued on President Trump's nominee for FBI Director, Christopher Wray.

Updates | The Week of April 3, 2017

4/9/17  //  Daily Update

This week, President Trump ordered a military strike on a Syrian air base in response to a deadly chemical weapon attack attributed to Bashar al-Assad's government. President Trump also shook up the National Security Council, including removing Chief Strategist Stephen Bannon from the NSC principals committee.

Updates | The Week of March 27, 2017

4/2/17  //  Daily Update

Democrats in Congress have been stepping up claims that Russian interference in the U.S. presidential election constituted an act of war. Further, President Trump has proposed cuts to the State Department while stepping up airstrikes abroad.

Updates | The Week of April 24, 2017

4/30/17  //  Daily Update

Ashley Gorski, at the ACLU, analyzes Section 702's broad grant of power to the executive branch to examine Americans' emails.

Updates | The Week of October 30, 2017

11/5/17  //  Daily Update

The Trump administration considered sending the suspect in a New York City terrorist attack to Guantanamo Bay. The Senate and administration officials discussed a new Authorization for Use of Military Force.

The Story Thus Far: National Security

3/16/17  //  Daily Update

From Guantanamo Bay to wiretapping to foreign intrigue, these have been a busy two months for the Trump Administration. Here are some useful analyses of the story thus far.

Updates | The Week of August 14, 2017

8/20/17  //  Daily Update

The State Department continues to restructure cybersecurity policy. Post-Charlottesville, the Trump Administration must also take domestic terrorism seriously.

Updates | The Week of August 7, 2017

8/13/17  //  Daily Update

President Trump threatened "fire and fury" against North Korea in response to reports that the country has produced a miniaturized nuclear warhead. Transgender service members are challenging the administration's transgender service ban.

Updates | The Week of September 18, 2017

9/24/17  //  Daily Update

The White House is preparing to loosen regulations on targets of drone strikes and commando raids outside of conventional battlefields. Robert Chesney outlines the detention and prosecution options available for enemy combatants who are U.S. citizens. A DOJ proposal would allow foreign governments to request data directly from U.S. communications providers.