The Lawfare Podcast

On today’s podcast, Lawfare Associate Editor for Communications Anna Hickey spoke to Nayna Gupta, Director of Policy at the American Immigration Council, about the Laken Riley Act, the first piece of legislation signed by President Trump in his second term, its start as a messaging bill in the last Congress, and its impact on the immigration detention system.We value your feedback! Help us improve by sharing your thoughts at lawfaremedia.org/survey. Your input ensures that we deliver what matters most to you. Thank you for your support—and, as always, for listening!To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/lawfare-institute.

Lawfare Foreign Policy Editor and Georgetown professor Daniel Byman sits down with Holly Berkley Fletcher, a former Senior Africa Analyst at the Central Intelligence Agency, to discuss the complex and tragic situation in Sudan and her recent Lawfare article on the subject, “The Sudan War and the Limits of American Power.” They talk about the initial hope following the overthrow of Omar al-Bashir in 2019, the subsequent military conflicts in Sudan, the country’s humanitarian crisis, the role of regional powers, and the challenges faced by civilians and the international community in addressing the ongoing violence and suffering. We value your feedback! Help us improve by sharing your thoughts at lawfaremedia.org/survey. Your input ensures that we deliver what matters most to you. Thank you for your support—and, as always, for listening!To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/lawfare-institute.

This week, Scott sat down with his Lawfare colleagues Benjamin Wittes, Molly Reynolds, and Anna Bower to talk through another big week of national security news, including:“Checked Out and Off Balance.” Over its first two weeks in office, the Trump administration has pushed against the traditional limits of congressional authority by unlawfully impounding funds, terminating federal employees contrary to statute, and seeking to dismantle at least one federal agency contrary to statute. But the Republican-controlled Congress has thus far remained almost entirely complacent, if not supportive of the president’s actions. How far will the Trump administration be able to go? And what will the long-term consequences be for the separation of powers?“Jus Soli? Jus Kidding.’” As one of his first acts after returning to the White House, Donald Trump issued an executive order refusing to recognize birthright citizenship in the United States for anyone whose parents are not citizens or lawful permanent residents. All told, it seems like a clear effort to trigger a review of the traditional understanding of the 14th Amendment as implementing jus soli, meaning citizenship based on place of birth. But how likely is it to work?“Fo’ Drizz(coll).” The Trump administration’s promised campaign of retribution has hit the Justice Department, where senior supervisors have been reassigned and prosecutors involved in the Jan. 6 investigations have been terminated, perhaps unlawfully. But now efforts to gather the names of FBI agents involved in those same investigations for presumed retribution are facing serious pushback, including from the Bureau’s Acting Director Brian Driscoll (known as “the Drizz”). How hard can the FBI and Justice Department push back? And where are the legal limits on what the Trump administration can do?In object lessons, Molly chose not to gamble and stayed on-brand with her recommendation of local-NPR-affiliate podcast Scratch & Win. Ben asked himself the question that many at the FBI are asking themselves these days: “WWDD?” Scott followed the sentiment with an endorsement of “Civil servants shouldn’t quit their jobs,” by Matthew Yglesias. And Anna insisted that her reverence of the TV show Severance has absolutely nothing—really, nothing—to do with belly buttons.We value your feedback! Help us improve by sharing your thoughts at lawfaremedia.org/survey. Your input ensures that we deliver what matters most to you. Thank you for your support—and, as always, for listening!To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/lawfare-institute.Use promo code RATIONALSECURITY at the link below to get an exclusive 60% off an annual Incogni plan:https://incogni.com/rationalsecurity

On Jan. 28, the Office of Personnel Management (OPM) sent out an email offering a “deferred resignation program” to over 2 million federal employees, encouraging them to resign effective Sept. 30. The offer is only open until Feb. 6—and in the intervening days since OPM announced the program, federal employees have received a blizzard of followup emails offering confusing and rapidly changing information. Writing in Lawfare, Nick Bednar has examined the OPM offer and raised questions about whether federal employees who take this option will be able to seek legal recourse if their contract is not paid out. On the podcast, Bednar, an associate professor of law at the University of Minnesota, joined Lawfare Senior Editor Quinta Jurecic to walk through the many legal issues raised by the program and how federal employees are handling this period of uncertainty.We value your feedback! Help us improve by sharing your thoughts at lawfaremedia.org/survey. Your input ensures that we deliver what matters most to you. Thank you for your support—and, as always, for listening!To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/lawfare-institute.

Nema Milaninia, a former prosecutor at the International Criminal Court and International Criminal Tribunal for the Former Yugoslavia and a current partner at the law firm King & Spalding, joins Lawfare Managing Editor Tyler McBrien to discuss legislation in the U.S. Congress and recent executive actions taken by the Trump administration to, once again, sanction the International Criminal Court. Milaninia discusses what is motivating the most recent sanctions campaign, broke down the many criticisms—some legitimate, some less so—against the Court, and explained why sanctions, which are typically reserved for criminal organizations, would benefit no one. He also speaks about how, despite the ICC's best efforts to insulate itself, sanctions pose an existential threat to the institution.To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/lawfare-institute.

From May 9, 2022: Many individuals seeking asylum or other forms of immigration relief in the U.S. are subject to a program run by Immigration Customs Enforcement, or ICE, called the Intensive Supervision Appearance Program, which uses various kinds of tracking technologies as a way of keeping tabs on individuals who are not detained in ICE custody.Stephanie Pell sat down with Sejal Zota, legal director of Just Futures Law, to talk about this program and the kinds of tracking technologies it employees. They discussed what is publicly known about these technologies, the privacy concerns associated with them, as well as some of the harms experienced by individuals who are subjected to the surveillance. Not withstanding these concerns, they also discussed whether the Intensive Supervision Appearance Program is a reasonable alternative to ICE detention, considering ICE’s need to keep track of individuals who are both seeking immigration relief and who may be ordered removed from the U.S. if that relief is not granted.To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/lawfare-institute.

In a live conversation on January 30, Lawfare Editor-in-Chief Benjamin Wittes spoke to Lawfare Senior Editors Anna Bower, Quinta Jurecic, and Roger Parloff and contributing editor Renee DiResta about the confirmation hearings of Kash Patel to be FBI director, Tulsi Gabbard to be the director of national intelligence, and Robert F. Kennedy to be the health and human services secretary.

For today’s episode, Lawfare General Counsel and Senior Editor Scott R. Anderson sat down with Chris Mirasola, an assistant professor at the University of Houston Law Center and former Defense Department lawyer, to talk through the ways that the Trump administration is using the military to enforce its new immigration policies.They discussed the steps the Trump administration has taken thus far, from transporting migrants on military flights to threatening to send them to Guantanamo Bay; the legal theories that the Trump administration is putting out there that might justify other, broader uses of the military; additional steps we should expect the administration to pursue in the near future; and what it all might mean for the rule of law and civil-military relations in our country.To receive ad-free podcasts, become a Lawfare Material Supporter at www.patreon.com/lawfare. You can also support Lawfare by making a one-time donation at https://givebutter.com/lawfare-institute.