Compiled by Sarah Willrich.
Articles
Colombia’s Transitional Justice Was Built to Survive de la Espriella
Isabel Rowan Scarpino discussed newly elected Colombian President Abelardo de la Espriella’s attacks on the country’s 2016 peace deal and considered what he could actually do to dismantle the institutions it created. Scarpino found that the deal’s design anchors core provisions in Congress and the Constitutional Court, making them difficult to repeal outright. However, she warned that de la Espriella could still erode the deal’s implementation at the edges, undermining its credibility for other armed groups that may weigh a deal of their own.
On the institutional track, de la Espriella’s legal path is severely constrained by Congress’s central role in legislating peace, and the Constitutional Court’s expansive oversight. Much ink has already been spilled by legal scholars clarifying that no president can unilaterally close the JEP or other mechanisms established by constitutional amendment. De la Espriella would need Congress to alter the constitution, and even then the Constitutional Court has the power of review; under the sustitución de la Constitución doctrine, reforms or amendments that conflict with foundational constitutional pillars cannot stand even if procedurally proper. Repealing statutory laws requires an absolute majority of each chamber, plus prior court review.
The Maritime Origins of Judicial Review
Thomas H. Lee reviewed Kevin Arlyck’s book, “The Nation at Sea: The Federal Courts and American Sovereignty, 1789-1825.” Lee praised Arlyck’s illumination of the often overlooked role of maritime considerations in the courts’ early definition of international law. However, Lee also wished the book had included other key cases and developed key concepts such as sovereignty more fully.
The federal courts are neither heroes nor villains in Arlyck’s even-handed treatment of the critical but underexamined role of the federal courts in the early history of the United States. What we see instead is a lot like what we are seeing today. The Supreme Court and federal district judges tended to align their decisions with the national security interests the president perceived. They paid lip service to lofty ideals such as republican government and the imperative of following the law of nations. But their actual decisions were often pragmatic, keeping the peace when American neutrality was the political branches’ goal and greasing the war machine when the United States was a belligerent. And when confronted with the monstrous immorality of the slave trade, the Supreme Court balked and restored enslaved persons and slave ships to European masters. The decisions in this respect foreshadow the federal courts’ handling of the Fugitive Slave Act cases and Dred Scott v. Sandford (1857).
Trump’s Private Hacker Memo Is the Right Idea
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discussed the Trump administration’s plan to authorize private companies to conduct cyber operations against criminal groups, a recent cyberattack conducted by Ukraine, the EU’s new cybersecurity standards, and more.
The U.S. government, particularly the intelligence community, also has incentives to make sure that proposed private-sector operations do not target foreign government entities. It wants to make sure that licensed hackers don’t accidentally interfere with its own operations, so it will pay attention to make sure there are no conflicts.
It is true that there is often some overlap between criminals and the state in countries like Russia and China. But we doubt that any government will complain if its activities are impacted because criminals in its country were hacked.
Podcasts
Scaling Laws: Matt Abrams on Trust and the Migration to the Digital Age: Matt Abrams joined Kevin Frazier to explore the impact of artificial intelligence (AI) on the collapse of institutional trust, Abrams’s work rebuilding that trust, and the relationship between AI, information integrity, labor disruption, institutional legitimacy, and democratic resilience.
Videos and Webinars
Lawfare Live: The Trials of the Trump Administration, August 21: Benjamin Wittes sat down with Molly Roberts, Anna Bower, and Eric Columbus to discuss updates in the prosecution of Don Lemon, Disney suing the Federal Communications Commission for its order requiring ABC-owned stations to file early license renewals, the Justice Department appealing the dismissal of Kilmar Abrego Garcia’s criminal case, and more.
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