Bulwark Takes - America’s Lawless Wars—From Chicago to Caracas (w/ Ryan Goodman)

Episode Date: October 5, 2025

Bill Kristol is joined by law professor Ryan Goodman to discuss the Trump Administration’s expanding use of “national security” at home and abroad, NSPM-7, National Guard deployments, Chicago raids, and lethal strikes on boats in the Caribbean. Plus the legal pushback, Posse Comitatus, district court rulings, and the looming War Powers in Congress.

Grab a coffee and discover non-stop action with BudMGM Casino. Check out our hottest exclusive. Friends of one with Multi-Drop. Once even more options. Play our wide variety of table games. Or head over to the arcade for nostalgic casino thrills only available at BetMGM. Download the BetMGM Ontario app today. 19 plus to wager, Ontario only.

Please play responsibly. If you have questions or concerns about your gambling or someone close to you, please contact Connix Ontario at 1866-531-2600 to speak to an advisor free of charge. But MGM operates pursuant to an operating agreement with Eye Gaming Ontario. Hi, Bill Crystal here. Welcome to Pullwork on Sunday. Very pleased to be joined by Ryan Goodman, Professor of Law at NYU, editor, maybe he's a co-editor of the Just Security website, which is a must read if you're interested in questions of national security and their overlap with, interaction with questions of law, I suppose, which there's a lot of those questions

these days, right? A lot of overlap and a lot of argument about them. So that's what we're going to discussed today. I mean, in light of what's been happening both domestically in terms of the president's, I guess, invoking of his national security powers, his commander and chief powers to do things here at home, National Guard, some of the ICE stuff, even, the national security memorandum, and then also abroad in terms of blowing these boats out of the water in the Caribbean and stuff and maybe the relationship between those two. So lots of cover. I really think we won't cover everything else. We could discuss about executive power and the law, you know, but I do think the Commander-in-Chief side of it, so to speak,

is, don't you think, is sort of a, maybe a coherent thing that we can cover a little bit, at least in 30, 40 minutes. So thanks, Ryan, for joining me. Thank you so much, looking forward to it. And you've written excellently on this and published such good pieces. So maybe we should begin with the domestic side. I mean, normally one thinks Commander-in-Chief, one thinks foreign policy, but I do think pretty hard to understand the President's claims,

which is put this way, about use of the National Guard. To some degree, a lot of the claims in the immigration sphere and the use of ICE are, let's call it national security, are they related? And then the question of how much the courts can do gets, becomes related to national security law. So, I mean, what do you make of it all? Where are we in terms of the president's ability to send federalized national guards and send federal troops to places in the U.S. to deal with problems that he sees real or imagined?

So I think we're in a very different place than when we last had a conversation in the sense that everything that you just described, I believe, comes together, whereby we have the operations on the high seas against so-called unlawful combatants, according to the president, and then operations inside the United States, which now, according to the president, are the enemy within, according to his, his speech to the 800-plus most senior military officers. So I do think that these things are joined together in a way in which we just spoke a few weeks ago. It's enormously different terrain and much more threatening in terms of the overuse of presidential powers of the claim to presidential powers, which might not actually exist. That's so interesting. So say a little more about that.

I mean, what are the base, what are the claimed powers and go in whichever order you want? maybe these can't even be separated really that much than the Caribbean and Chicago, you know. Yeah. So I think starting maybe from the domestic front, since that's the inflection point that was just reached in the past week with Trump and Heggseth's remarks before the most senior military officials from around the world, and that's the claim that he's exercising his commander and chief authority. That's why he's speaking to the military. He's not speaking to the FBI or something like that, saying that this is the new frontier. You've taken an oath to fight the enemy, foreign and domestic. And then he turns to the domestic invoking, if we talk about law and the legal framework,

invoking his executive order that calls for creating a rapid deployment force of the National Guard, invoking the national security presidential memorandum, more as an illusion. He didn't do that one as explicitly, but he's doing it pretty explicitly saying that these people are domestically insurrectionists. So we're not just talking about the idea that he's saying, oh, it's an invasion from within, which he said that as well, which might be, people might think is a reference to migrants or something like that, or TDA, Thrandera, Venezuela and gang. But he's definitely focusing in on what he considers to be left-wing protesters and the like. And they sometimes tie that to violence, but it's not always tied to violence. And so I think that's the front. And then we're having this conversation right in the wake of a Trump appointed federal district court judge, Judge Karen Emigott, having said, this is not our history, this is not our tradition of basically an imposition of martial law in Portland, Oregon, and placing a temporary restraining order on the president's ability to mobilize the National Guard in that instance in a remarkable pushback.

And the pushback, just for folks's understanding, is the factual predicate for all of this. So she's actually very good about saying there is deference, there's a significant deference that judges owe the executive branch in questions like nationalization of the Federalization, excuse me, of the National Guard. But he can't have his facts as he deems them. The factual inquiry shows that these claims of a war zone in Portland are just fabricated, essentially. She doesn't use that as terms. Hers is a very measured opinion, but that's, that just happened. That's one of the ways in which the system is, I think, holding. But it's the concern about, you know, Chicago seems to be next, according to Governor Prescott.

So you mentioned that National Security Presidential Memorandum, I think it's NPSM 7, which was issued, what, about 10 days ago, a few days before the resident and the Secretary of Defense spoke to the general and flag officers. say a word about that and how important is that. I mean, it is striking. It's about domestic things, I think it's fair to say. It's about actions here at home, but it's a national security memorandum. I think that for me was just very striking. It's not like the normal, I don't know, when I was in the Bush Quail White House, the Bush White House, and way back when Vice President Quail, Chief of Staff,

you know, the president, George Bush sent the guard, with the consent, we had to get the request maybe of the governor of California. We sent troops to Los Angeles to help quell pretty big riots in 1992 after the Rodney King verdict. But there was no, it wasn't national security. I mean, he was using the National Guard in a way that is rare, but is, I think, okay for a genuine, you know, legal crisis. Law enforcement would call violence crisis, let's call it, just the way the National Guard can be used when there is flooding or other, you know, disasters. But no one thought this was like a national security exercise, I guess. And what struck me about that memoranda, but you should explain it much better than I can.

I mean, is the attempt to bring the national security rubric into things that are happening here in the U.S. Yeah. So it's, I think everything that you just said, it's using the national security apparatus in such a way, which, because it's focused domestically, One can only assume that Stephen Miller is empowered by this. It's like connecting it up with national security concerns and then frameworks, I should say, and then imposing it domestically, it almost, I have to assume that he wrote a large part of it. I mean, it just looks like it comes out of his mind in a certain sense and his rhetoric around this. And I think what people should understand, they should Google it, just N-SPM-7, is that if you read it, it is just extraordinary in its target set. So using the national security apparatus, the target set are individuals, I would say, in many instances, appears to be exercising First Amendment rights.

You can look at the memorandum and identify time and again, and I can point to some very specific language. that is not connected to violence. Like, maybe you could have a memorandum of something of that nature if there was domestic violence. But if you just elips out violence and keep the other language in there, because it's often an or, so it's like in response to violence or, like, conspiracy against rights, that's about activity that even if it were illegal

has no connection to terrorism or violence. And the indicators that they, the indicators that they, have in the memorandum are really also just extraordinary. So the indicators of what they're calling the domestic threat are things like if people are quote unquote, here's the list that includes quote unquote anti-Americanism, extremism on migration, race and gender, and hostility towards those who hold traditional American values and family, religion, and morality. That's one part of it. Then, as Tom Jocelyn has written, is also very interestingly, when you read the memorandum, it's what's not in there. What's conspicuously absent. What is conspicuously absent is that

usually with these kinds of authorities, there is strong language to say, and directing all the way down through all the bureaucracy and agency, do not target people on the basis of their First Amendment rights. Do not target people based on political activity, political speech, and the like. and that's missing from this memorandum, so I think that's important. I just want to give a flavor of language that's in here that has no connection to political violence or terrorism. They say they are establishing a national joint terrorism task force that, quote, shall investigate potential federal crimes relating to acts of recruiting and radicalizing persons

for the purpose of dot, dot, dot, conspiracy against rights. Next one, quote, the attorney general shall issue specific guidance. that ensures domestic terrorism priorities include politically motivated terrorist acts such as dot dot dot civil disorder so just gives you a sense of how incredibly dangerous this is and it's not just the power and and to understand that a large part of the power that's being exercised here is just opening up criminal investigations of people so fishing expeditions and the like on the basis of what looks like political speech, First Amendment activity. And what do you make of the memorandum calling this domestic terrorism, which is not, I don't

believe, I mean, there are these joint terrorism task forces. I think each U.S. Attorney's Office maybe has one in conjunction with the FBI. And they investigate the things that we are very familiar with the FBI investigating, which include criminal activities by groups here at home, right, left, crazy, you know, whatever, You know, cults, you know, obviously that's all something the federal government's been involved in for quite a long time, and especially since 9-11 or even before 9-11 with the World Trade Center and so forth with the original attacks in the early mid-90s and before that. But this, yeah, so again, those that already existed, right? There's no, the FBI has the ability and the Justice Department has the ability and has used that ability many, many times to investigate crimes or conspiracy. to commit crimes here on American soil.

But what strikes me is, yeah, both it's a national security memorandum, but what do you make of the use of domestic terrorism? So I think this has to be understood in connection with the notion that the president can now designate certain groups as domestic terrorist organizations so that people understand, I think the most important piece to understand about that is that is trying to rule in a certain sense by executive decree where Congress, has sought fit never to create a domestic terrorist designation authority. There is no such thing in legislation that gives the power to the executive branch to do that.

Out of concern for that these powers would be used to target people based on their First Amendment activity, and the slippery slope that it leads to. Yes, there is actually statutory authority for the executive branch to do that for foreign terrorist organizations, which has been used very well. in many respects, but not domestically. So I think this all is trying to tie it in and designate such as Antifa as though it is a terrorist organization. You know, one might even say as though it is an organization first, and then as though it is a terrorist organization designated as such when there is no such designation.

So I think that that's the road that this is going down. And it's, I think it might be no coincidence that the CNN recently reported that the Eastern District of Virginia, which is the same U.S. Attorney's Office that indicted James Comey, is investigating the leadership of Chris Ray at the FBI during the Trump years. And I think it might be no coincidence because Chris Ray was one of the most significant voices testifying before Congress by saying, Antifa is not an organization. It is just an ideology or a movement, in a sense. And so, and that far right violence was the greatest threat to the United States domestically. So I think that's the situation we're in at least to try to get a situation

analysis of what's on. Yeah, that's very useful. And how does, I guess, immigration and ICE fit into this? Because it seems to me that immigration has always been a little bit on the border, so to speak, between domestic and foreign policy, obviously. And in fact, the rules at the border are different from the rules internally in terms of, I believe, people's rights and so forth. to some degree. But I'm just, yeah, I mean, I guess I'm struck that this goes beyond, doesn't it? I mean, I don't ask a leading question, but simply deploying ICE aggressively to do, I don't know, to do immigration, anti, you know, to do policies to try to discover people who are undocumented

or people who are undocumented and committed crimes. Yeah, I think there's a lot of concern in the military community and the like that this is an erosion of military civilian relationships that to have the U.S. military on the streets in this kind of a way, I think, is a deep concern. So that's one part of that aspect of it that we're talking about. The second aspect of it with respect to ICE, this is definitely turning the power of the government and the law enforcement agencies towards American citizens. I mean, that's the, that's what the list is all about. That's what NSPM 7 is all about.

Our U.S. citizens, U.S. citizen organizations, things like that, that I think is the road that we appear to be going down. Now, a lot of that is using, it also uses the IRS. It invokes the IRS in addition to Treasury and the Justice Department, FBI, etc. But I think this is also a piece with the ISIS militarization as well. So to me, we went through an inflection point in the last few days with the paramilitary operation conducted in an apartment building in Chicago by Border Patrol, apparently, forces. So I think that the – and including Blackhall helicopters apparently landing on the top of the building,

according to ABC News's reporting. And so I think all of these things are lining up in the same direction, which is a very deliberate strategy. And I assume in our conversation we'll talk about this cannot be disconnected from what's actually happening in the high seas and the Caribbean votes. Yeah, let's get to that in a minute because I think that has not gotten actually as much attention, understandably, I suppose this is stuff that's happening right here in Chicago with cameras, you know, with people taking footage on their, on their, on their phones and

stuff. But just, yeah, so I guess with ICE, one might say, you know, the very aggressive implementation of certain policies, which we can then argue about exactly whether they're being legally implemented or whether the policies themselves are all entirely legal against immigrants, against people who are not American citizens. Let's put it this way. With some American citizens getting caught up in it, incidentally, but they would claim that's incidental and they're released once they realize they're Americans or whatever. I don't think they actually claim ICES, the ability to imprison or deport American citizens. It seems to happen a certain amount, but they claim that's just a incidental of byproduct.

But I suppose the thing to say, one thing to say is that this National Security Memorandum, as you were saying, in the executive order, it's explicitly about American citizens. We're not talking about, right? So it's a different level. It's a step beyond people's concerns about ICE. Do you think? I mean, absolutely. Yeah. Yeah.

And exactly in the way that you just described it. Like, it's an intentional targeting of American citizens. It's not about foreign nationals or migrants in the country unlawfully. Though I suppose there's a bit of a sliding from one to the other, right, in terms of the, well, the designation of these foreign terrorist groups, which then slides into, or these rhetorically slides into domestic terrorism and they're helping these group, you know, I don't know. I mean, maybe that's more of the rhetorical, I suppose, legally isn't the same thing, though. Yeah, though it's interesting the way in which you ask the question because it makes me think that, you know, what is the true objective? Right. Right.

Because the true objective does seem to be about a militarized clampdown on American cities. And you can even see it in the switching framing on Chicago. Like the president says, oh, it's about crime. It's about immigration. It's about crime. It's about immigration. That's why I need to bring in the National Guard. DC, there it's about crime.

It's not about immigration. So I think the shifting justifications are all still pointing towards these same kinds of ends. And the weaponized use of the Justice Department, IRS, et cetera, against, I mean, I don't want to say the words even like perceived enemies because they should not be within the structure of thinking of it as enemies. These are other American citizens. I mean, it's another way of saying what you just said. is, yeah, the L.A. use of the Guard and of actually active duty troops was very much framed as a matter of supporting ICE and its immigration efforts. By the time we got to D.C. was really

about crime. I mean, at least partly, explicitly, supposedly about crime. D.C. is a little unique, so it's a little complicated as well, though in practice, I say, as someone who lives, right, outside D.C., a lot of what happened was actually ICE efforts, you know, a lot of them was still targeted immigrants. But now we're so, and Chicago's a little complicated, but other places, it's just crime where they're talking about, I mean, it's not just crime, because sometimes the crime is directed, they claim at ICE agents. But I think we're way beyond helping ICE do its immigration job. And I think, I guess, I'm not even why am I even saying this, because that's explicitly the case that we're now talking about American citizens. And we're not even talking about

crime anymore just to get to the next. So it's ICE immigration, that it's using the guard to help out with crime and crime-vidden war-ravaged cities. And then we're beyond that now to According to the National Security Memorandum, to using the federal various instrumentalities of the federal government to go after people who are subversive or whatever one term one was to use, right? I mean, who are attacking, who are anti-American. So it is a pretty striking progression. I suppose you could argue one does lead to the next in a certain way. Well, in a way, but I mean, but as you say, that seems to have always, I don't know if it's always been a part of the plan, but it is, for them, it seems to be seen. seamless. I guess it's the way I put it. Whatever we think of it and whatever

charges may think about this is different from that. I think in Steve Miller's mind, it's all part of one project. It certainly appears that way. I mean, it seems like interlocking parts. Yeah. Well, speak about the other interlocking part. The actions on the high seas, which I think we both agree have maybe not quite gotten the attention they deserve, though you've published some excellent things about this. Yeah. So the big development in the past week is

thanks to Charlie Savage and Eric Schmidt's reporting of the New York Times. We now know, and it's since been leaked, the executive branch has submitted a written notice to Congress, which was required to do under a new statute, giving legal justification to the strikes on these alleged drug smugglers in the Caribbean on the high seas. and the paradigm shift is that the written notice says that the President of the United States has determined that the United States is in an armed conflict with unspecified designated foreign terrorist organization drug cartels and that members of the drug cartels according to the president are unlawful combatants, quote unquote. And therefore, as unlawful combatants, can be killed at will. It does not matter if they're surrendering. It doesn't not matter if they're defenseless. It does not matter any which way.

They're just treated like fighters on a battlefield or in their barracks asleep. And they can be shot and killed at any point. And that's the sea change that's just occurred. And I should just add to that. national security lawyers across the country basically think this is bunk. Like there's no legal justification for it. This is using words that sound in law, but they're not anything about what those legal terms or concepts are meant for.

So John Bellinger served as the legal advisor to George W. Bush after 9-11, National Security legal advisor, he said it's making a mockery. of international legal terms. John Yu, who wrote the most expansive Office of Legal Counsel Opinions post-9-11 under the George W. Bush administration doesn't just say that in answer to reporters' question, but writes of Washington Post-Abb Ed saying that this is not war. You cannot use this as a justification for assuming that there's like a war with a cartel that doesn't exist.

Jack Goldsmith quoted by Charlie Savage earlier said, even if you could get to like some kind of congressional war authorization, you still can't kill people who would be civilians in that war. Marty Letterman has written great pieces at just security, and he knows this area extraordinarily well from working at the Office of Legal Counsel and on things like the issues of drone strikes against U.S. citizens, things like that. And he said, basically this amounts to, regardless if we're at war or not at war, murder. It's either the federal felony murder statute or it's the war crimes at murder.

Now, he's not trying to point the finger at the individual operators. He's just saying if you want to assess what's going on here, bottom line, it just ends up being murder. So no repackaging of this can get you any other way around that. And just last thing, I just want to say this in case I forget, but I just want to maybe make sure that it's one of the first things I say. I do think that some people listening to us or watching us might think, well, wait, why does it really matter if the drug cartels are creating as many deaths or many more deaths in the United States through fentanyl than some of the offshoot al-Qaeda groups ever did? And so what's wrong with using a war model to target them as such? There are many things I think I could say about that, but one of the things I'd like to say about that is why is it that Secretary Hexon's, Seth never says that the people who are blown up were carrying fentanyl, the people that were

definitely trying to just straight out kill, probably because they're not carrying fentanyl. So the U.S. official statements, the N.A. statements are, sorry, DEA statements, drug enforcement administration on these cartels, is that TDA-transport. pink cocaine, they do not transport fentanyl. If you want to go after fentanyl, then it's Mexican drug cartels. It's Canada would probably be second and China. Third. And based on the statement of the notice to Congress, which does not specify the cartels, the President of the United States is right now asserting authority to do two things, at least, go after drug cartels in Mexico. So do people support bombing Mexico? And second,

Second, if there are drug cartels whose members are all unlawful combatants, there are unlawful combatants inside the United States who, according to that understanding of international law could be targeted just on the basis of their status. And really, I think you've brought home how extraordinary it is. I mean, we're at a war, we're fighting a war that the president has unilaterally declared without any congressional authorization and without any real attempt to even prove, so to speak, that it's a real war against a real state or even a real non-state actor

as opposed to a bunch of criminals, deplorable, though they are. And secondly, we're blowing, we're killing people who were not, there's no attempt to even show that they are combatants in this war, even if there really were a war.

They could be either just, well, they could be civilians and certainly the first boat, the war one here is actually does sound like it was, just people trying to get to the U.S., probably not people smuggling drugs, They're not swelting the drug that they said.

I mean, HECSeth says, narco-terrorists, I think you put this out in the last statement he makes. So it's narco-terrorists affiliated with a foreign terrorist organization that we designated as that. And the idea that you could, if we could blow up, quote, narco-terrorists who were, quote, without proving that they're narco-terrorists, were, quote, affiliated with a foreign terrorist organization that we've just, you know, laterally designated, apparently. I mean, you're right. What's the barrier? And what's the barrier to doing it in the United States, right? I mean, there really isn't any legal.

I mean, people say on the high seas a lot as a place it sounds. I don't know what it sounds like. It sounds like a term of art or something or a legal term. And it is a legal term, obviously, in certain respects in terms of people, you know, who has rights to fishing in certain places or who has what the Navy. But, of course, the Coast Guard board ships on the high seas all the time and turns them around or seizes them and ceases their what they're carrying if it's illegal and destined for us. But the idea that we just blow them up, it's pretty mind-boggling, actually.

Yeah, I mean, there's no geographic limit to the authority. There's no geographic limit in the notice to Congress. There's no citizenship limit. I mean, if these were citizens on the high seas or inside the United States, there's no reason, according to this legal framework, that it wouldn't apply to them as well. And I think people need to think about, like, would we think that governments around the world have the right

to just kill people that they suspect of engaging in drug trafficking? trafficking just because they suspect it and then they can just kill them, even though they could otherwise apprehend them and subject them to a trial. And just to put the last punctuation point on it, it's not even a capital offense in the United States for what these people are alleged to have done. And we're deliberately killing them. In fact, I think the most recent strike looks like, according to some of the people I know who are experts in this, it looks like they use munitions that are just geared towards lethality. They're not just trying to take that boat out of the

water. They really are trying to kill or murder people. And I think one of the earlier accounts, maybe it was the first bow was that it had been struck, but not everyone had been killed and we went back and, yeah, killed those people. That seems like that's not, well, whatever. Yeah, absolutely. New York Times reported that. Multiple strikes in order to, even after the first one didn't succeed as well, So these are people who are totally stranded in returning to ensure that they die. I mean, it's just, you wouldn't do that in warfare.

I mean, that's the thing, right? I mean, if you could otherwise, yeah, that's what's kind of, you know, one thing that rattles that's rattled me the most about it, this is, I'm curious if you think this is what you think about this. You know, the national, the presidential, the national security presidential memorandum is, it's not maybe the greatest legal document ever, but it's produced, it's, it resembles is one, and it's produced by, it's not personally written by Donald Trump or even Stephen Miller, I'm going to say.

I mean, it's maybe he did some work on it and dictated stuff, but it's written by a whole bunch of people who work for him, I guess, but also people at the Justice Department and and other relevant agencies who would have to have some input, I should think, DOD, perhaps, and that's the letter to Congress, notification to Congress in which the president has determined that we're at war, also has a kind of legal feel to it. presumably people somewhere in general counsel at DOD or justice or the White House worked on that. I guess, I mean, on the one hand, I think it does a little bit, it's useful to remember that. People talk about Trump and Miller and, oh, my God, they're out of control.

How crazy is this? But they're taking an awful lot of other people with them in their out of control efforts. And I guess I'm a little rattled by the fact that these documents are being produced. You don't see at least that much publicly about resignations or objections or, or fights about it even. There weren't that many leaks the way they're, God knows, in the early days after 9-11, not early, but the year to after 9-11.

There were huge fights in the Bush administration. And I think, you know, people with decent intentions on different sides, you know, just having, and it leaked out. And that was probably healthy, honestly, because it led to more debate and stopped some bad things from happening and so forth. And we learned about it. Maybe we learned about it a few months later, some cases. But anyway, I guess I'm a little,

what's happening in the government, I guess is my question. And how far down does the Miller view permeate and how much far down does his ability to shape everything go? It's a great question. So there does seem to be significant resistance and opposition in U.S. Attorney's offices. So when it gets to that point, like it filters down and it gets to that point, we've seen major resignations, we've seen whistleblowers and the like. we've seen people just flat out, it seems like, say, I will not both hold this job and take that order, like prosecuting Comey, it appears like, or the Abrago Garcia, one, which we just now got an opinion from a federal judge saying there's enough evidence here of vindictive prosecution,

in part because one of the significant DOJ prosecutors resigned on the day that he was indicted as an indicator. And it's ABC News reporting that the judge refers to, which said that he was doing it because he thought that the indictment was politically motivated. So I think there's where we see resistance. I do think it's very curious what's happening at DOD and DOJ main justice with respect to these authorities. I hope that when Attorney General Pam Bondi goes before the Senate Judiciary Committee this week, She's asked about the full gamut of things, but also including the Caribbean boat strikes and that notice to Congress, because it seems heavily lawyered, normally, the Office of Legal Counsel would be involved. And if they weren't involved, that's a problem.

And if they were involved and signed off on that, bogus legal analysis, that's very important for the government to know. I would think the Senate Judiciary Committee to know. And then there's reporting that the General Counsel of DoD when he gave a brief, it was part of the briefing to Congress this week on the notice and the legal basis for killing these people on the high seas. He said, apparently, well, the fact that they've been designated as far in terrorist organizations is enough to target them, which is like, what on earth are you talking about? You cannot target people when there's no, like, immediate threat of violence.

They're not carrying weapons. They're not firing on people, nor is it an armed conflict. You would need it to fit into an armed conflict. And I think they kind of recognize that in a certain sense to do these status-based targeting. But it's not an armed conflict. And there's been one piece of writing. I wondered if there would ever be anybody who would try to write something in justification of it. There's been one, and there's just been an avalanche of other legal experts writing that this is not a legal, the war framework does not apply legally, that one piece of writing, at best it would get a B minus if it was an exam paper that I was grading, probably a C.

It's just, it's junk. They do this little, there's a whole windup where they say nothing. Then they say something finally. and then they never put the two pieces together that you would need to actually get this into an armed conflict framework. So it just shows you how bunk it is and one wonders if the career military lawyers inside the government and civil society law, not civil society, civil lawyers inside the government have been excluded from the process, which there's some suggestion that they have been, because that's the only way I can even begin to understand how this could be legally signed off. I mean, one thinks, we'll close maybe with a couple of questions on this way. One thinks of barriers to a president just exercising power, including lethal power, and as you say, not just against foreigners necessarily, willfully and illegally. One barrier would be all the layers we have in the government and the tradition we have, DOJ, DOD, elsewhere. And you discuss that some, and I guess we'll see, right?

And I think we will learn more on that. I've got to think as this goes ahead, this strikes me that there's a lot of efforts to suppress dissent. But I don't know. I don't know. It does sound like there are people who are unhappy. As you said, in the attorney's offices, more of that. There's also, I guess the two others won't come to mind right away are the courts. I'd like you to say a word about there are these recent decisions that seems like some district judges, at least, being a little more forthcoming and just in not deferring to the president,

even if he invokes the magic courts national security or commander-in-chief. And then Congress, which you mentioned in passing, well, which is, you know, where there was testimony and to whom that letter was addressed, but which, of course, has otherwise been, well, anyway, say word about the courts and about Congress. If you think, sort of structurally, what stops a president from doing things that he shouldn't be able to do? It's the executive branch internally, to some degree, to considerable to be sometimes. And then, I guess, the courts in Congress, right?

Yeah. And then the country is a whole light. Yeah. And so I think the courts are standing up in many respects, the lower courts. Supreme Court is, I think, to me, still yet to be decided. I know many people think that they already kind of are very much on the side of the White House in various ways. But we are seeing remarkable actions by the district courts on these invocations of executive power. So just to give folks an understanding of that, the Judge Breyer in California has basically set, has not basically,

held that the National Guard and Marines in L.A. are acting a violation of the Posse Kamatatus Act, and he stops that use of the Marines and the National Guards. That's one. Then we have Karen Intergett, which she is a Trump appointed judge saying that it's a violation of the 10th Amendment to federalize the National Guard in Portland because it's also based on um no factual predicate and then we have the fifth circuit which is more conservative than the u.s. Supreme court more conservative than the robert's court's the fifth circuit saying that the invocation of the alien enemies act against trend arragua is invalid in part because trendairagua is not an organized armed group which is also it ties in with the Caribbean piece as well like you need

an organized armed group to have an armed conflict with them you need an enemy like that and so that's that's the courts, but the one piece that I think is really significant is, when we all think about litigation and where it is at where it's going, it's very difficult to litigate the use of military force abroad. So the use of military force in the Caribbean on the Caribbean on the high seas, or if President Trump were to open up a real armed conflict with Venezuela, which I think is a pretty good likelihood. How do you litigate that? And members of Congress, don't really have standing to go to court. It would have to be like a chamber of Congress, and that's not going to happen. So that then goes to your question, Bill, what about Congress? I do think we are in a

unique situation or a special situation in which if Congress does nothing, the president is supposed to withdraw the military operations on the high seas. And what I mean by that is we're in this special situation where the White House has indeed submitted a war powers report to Congress for the military strikes against the alleged drug smugglers. And there's a 60-day clock. The 60-day clock expires in the first few days of November. If there is not affirmative congressional authorization of those military operations, the president of the United States is under the War Powers Act supposed to withdraw the troops from those hostilities. And as Marty Letterman pointed out, the fact that this White House has said it is an armed

conflict makes it almost impossible for them to say this is not hostilities in that sense. And they themselves have submitted a war powers report. So the clock has started. It expires in November. It does seem like we'll have action on the hill for efforts to get Congress to affirmatively terminate the authority or the abhorrently. for the president to be in these operations. But even if they didn't do that,

they need to give them affirmative authority by the early November. I do think we'll then probably see the president claiming that that part of the War Powers Act is unconstitutional or something like that. But that's where it'll happen next. But that's also an argument that I think people need to wrap their heads around in the sense

that I think many of us, Americans, regardless of party ideology, et cetera, think that you need congressional authorization to take the country to war. and the president is saying this is war. So he needs that affirmative authorization. If the president says, I just, you know, we've decided, we have an OLC opinion that all or some of the war powers act is unconstitutional,

which others have argued in the past other executive branch of the presidents. And I'm ignoring it, I guess, does that get to court or is it just become a fight between Congress and the president? I mean, yeah, I think it's very hard to get it to court. I can think of, there's one way which some of this would definitely get to court, which is if somebody is detained under this authority and then they get a habeas petition, it was even thought that in Trump's first term, one of the reasons it was some of the legal advisors told him, or that administration told him not to bring any ISIS members to Guantanamo is because then there was the litigation risk that they could bring a habeas case and argue, which they had to pretty good argument that it was not authorized under the congressional 2001 authorization for use of force. So that's one of the ways in which there is an avenue in to some third party institution, the judiciary, making a determination as to whether or not this is lawful. But that's one. And there might be some other ones that we could potentially see on the horizon, especially if there's

resistance inside the military to following manifestly unlawful orders. that there could be a case where someone's, you know, fired or disciplined or something, I suppose, and then claims it's in a lawful order. And I guess, well, that goes to the military justice first, I guess. But, I mean, I guess what you say, the judges have more, obviously, ability to intervene on the domestic side. And they have been doing so, as you said, more than one might have expected at the district court level, at least now. And more, I'd say more, I'd actually think more, I don't know, more vigorously or more emphatically, maybe it's the better word, right? and looking beneath the hood of these justifications and saying this doesn't even pass the minimal test of deference to the, it has to be something that we're deferred to the president on some factual, credible, plausible factual basis.

And I guess Judge Immigrant in particular just says that it's not there, you know. Yeah. And in some ways it also traces itself back to this famous opinion by Justice Jackson on the deference owed to the president. and it's exactly as you describe it, yes, there is judicial deference that have a much greater degree to owe to the president when it's military action abroad,

but not when that military action is brought in for domestic use. And that's the sharp difference in the Jackson opinion that I think we are now facing that issue. And if these cases, and then as you say, like if these cases about the Caribbean strikes one way or another find themselves

in a court proceeding, I have every expectation, that the judges will give even greater deference to the president on that. But we shall see. The other piece that I do think about quite a lot is we have precedents in the past that appear to close off certain avenues one way or another, but what's happening now is so unprecedented that you could imagine that the case law itself will rise up to meet the moment.

There's reasons why there's been deference in all the like in the past, partly because the executive branch acted a court. according to regular procedures on the basis of real intelligence and expertise. And this executive is actually, in a certain sense, explicitly saying that they're gutting those parts of the administration and they don't like the so-called experts and the intelligence community. So, and these statements, these positions by the executive are so out of whack with both the facts like the alleged facts in Portland and the law, the allegation that we're in

on conflict that I think courts might not strictly bind themselves by the past precedence because we're really in a very different moment. Yeah, that's very interesting. So final, I guess, final, final question. I mean, so you have the internal questions of what's happening in the executive branch, the questions about the courts, questions about Congress. I guess those are the three obvious, three, maybe they're more, but three obvious, you know, areas where this comes to a head.

When do you think we know more about who's doing, who's stepping up? or who's not or both where the administration's going and also what kind of resistance they're going to me do i guess it just is it just a week-by-week thing or there's some obvious moments where we'll say oh my this is a reflection point um it's a great question i i i mean i think there's one big one which is if there if the um government does the federal government decides to open up a warfront in Venezuela. So at the same time as this fourth strike, there were apparently U.S. military jets that went into Venezuelan airspace, and the Venezuelan government strongly protested that. And there's obviously a ramping up of at least rhetoric against Maduro. And so I think that

might be a major inflection point. And the other is, I think we should see some action at some point with the Armed Services Committee. I have to imagine they're very concerned. And it sounds like the Senate side was very concerned based on the briefing that they got. So I do think that that might be a point at which is just a point too far. And it often can be in the political self-interest of members of Congress to push back on this because they do not necessarily want to be on the line for having greased the wheel or authorized wars. And the way I think of it is like this is a new forever war potentially. So I think there might be that.

And we'll see what happens. I mean, my eyes are also on the coming legislation that's being proposed in the Senate to terminate the military operations in the Caribbean, at least not that they should be terminated if there's no congressional authorization. And, you know, Senator Mike Lee in the past, past decades, he has strongly stood up against that kind of exercise of authority, including under the Trump 1.0 administration in favor of looking after the needs of the, congressional authority. So Mike Lee, Rand Paul, Senator Young, this is not historically being a partisan issue. It really has been bipartisan. So that is an inflection point in terms of the direction that it goes to see where that happens. And I suppose the cases that have been out the decisions by Judge Imigod and others that prior do get to the Supreme Court one way or the other at some point and not that far away? Or I mean? I mean, these days not that far away because

of the way which the court is intervening very fast in an emergency docket style to like dip right down into the litigation and that the Solicitor General has been very fast at trying to bring those cases up, though with one caveat, which I think is an important one to understand what's happening between the court and these lower court cases, is it is the Solicitor General who is deciding what to bring to the court on that emergency docket. So if he thinks something is a loser, he might not bring it. as happened in the past with birthright citizenship. But then he made a promise to the court that he would bring it. So that's partly why that one was brought.

So I guess we'll know more. It sounds like from all these different areas, we'll know a lot more in three months. Would you agree with that? What's it, October 5th? That you think by the end of the year, we'll have much better sense of how this is all playing out within the executive branch and among the branches.

Do you think? Yeah, absolutely. We're only at the beginning of that part. Yeah, which is both, I don't know. Is that good or bad? You know, it's been how far we've gotten in nine months, it's in a way astonishing. But, yeah, Ryan, thanks so much for joining me today. It's very, very interesting and important, and we'll all stay in touch on this.

Obviously, and we'll cover it at the bulwark. You'll cover it to just security, and we'll have you back on in various modes. So thank you for taking the time today. Thank you. Always appreciate the conversation with you. And thank you all for joining us on the bulwark on Sunday.