Today on Lawfare: Dec. 2, 2025

From Lawfare's Editorial Team.

Compiled by Isabel Arroyo.

Articles

How U.S. Export Controls Risk Undermining Biosecurity

Doni Bloomfield, Joe Khawam, and Tim Schnabel explained how U.S. export restrictions on “assist[ing]” the design of biological weapons risk chilling critical biosecurity testing at frontier artificial intelligence (AI) firms.

Recognizing this danger, major U.S. AI labs evaluate their models to ensure they can’t be used to design or deploy weapons of mass destruction. However, these evaluations themselves risk violating U.S. export control laws—even if testing is conducted entirely within the United States by American companies working in good faith. This regulatory paradox threatens national security at a critical moment in AI development. The executive branch should promptly clarify how existing export control tools can facilitate biosecurity evaluations while pursuing targeted regulatory changes to ensure that compliance supports rather than impedes safety testing.

Litigating in the Shadows: Federal Funding and the Supreme Court

John Lewis presented three strategic lessons for litigants unsure how to navigate the dynamics of the Supreme Court’s “shadow docket.” Lewis stressed the preliminary nature of shadow docket decisions and urged litigants to continue bringing cases.

As these federal funding cases have illustrated, the rise of the shadow docket has ultimately created a judicial management problem for the Supreme Court. As much as it seems to be trying, the Court lacks the capacity to rush to the Trump administration’s defense in every challenge to administration policy that arises in the federal courts. The Court relies on the willingness and ability of the 800-odd lower court judges across the country to correctly follow its decisions—to strive to reach the result that the Court believes is appropriate in a given range of cases. The Court might wish to consider whether its aggressive use of unexplained shadow docket orders to guide lower courts has instead had the opposite effect, leaving them rudderless and increasingly at odds with the Court itself. Until then, litigants, in the federal funding context or otherwise, should not be overly deterred by the existence of the shadow docket or give these largely unexplained interim decisions more weight than they deserve.

The Situation: Things You Might Have Missed Over Thanksgiving

Benjamin Wittes contemplated developments that took place over Thanksgiving weekend, from a court ruling against Alina Habba’s appointment as interim U.S. attorney to Defense Secretary Pete Hegseth’s alleged order to kill all survivors of a boat strike in the Caribbean.

This order, of course, Secretary Hegseth hotly denies having given—sort of.

“This entire narrative is completely false,” his spokesman said in a statement that went on to insist that, “Ongoing operations to dismantle narcoterrorism and to protect the Homeland from deadly drugs have been a resounding success.” Which is something less than a denial that a kill-them-all order emerged from the secretary’s mouth. Kind of more like: This story is completely false to the extent the Post suggests that our killing of shipwrecked survivors was ineffective or less than a resounding success.

Podcasts

Lawfare Daily: America’s Defense Industrial Base: Daniel Byman and Seth Jones discussed Jones’s new book “The American Edge: The Military Tech Nexus and the Sources of Great Power Dominance,” which compares the industrial bases of China and the United States.

Scaling Laws: Caleb Withers on the Cybersecurity Frontier in the Age of AI: Caleb Withers joined Kevin Frazier to discuss how frontier models disproportionately advantage attackers in cyberspace, the steps labs and governments can take steps to address attacker-friendly asymmetries, the future of cyber warfare driven by AI agents, and more.

Announcements

Beginning on Dec. 10, Laura Field, the author of “Furious Minds: The Making of the MAGA New Right,” will teach a 6-part class on the conservative intellectual movement and how it has shaped Donald Trump’s presidency as a part of the Lawfare Lecture series. You can gain access to these classes by becoming a paid supporter at Patreon or Substack. The lectures will also be published on Lawfare’s YouTube channel on a delayed timeline.

Submissions are now open for Lawfare’s annual Ask Us Anything podcast, an opportunity for you to ask Lawfare editors and contributors your most burning questions of the year. You can submit questions through Dec. 16.

Lawfare’s new Domestic Deployments Tracker maps federal non-disaster deployments of the military within U.S. borders. You can read more about the tracker here.

The Trials of the Trump Administration, our coverage of Trump’s executive actions and their legal challenges, now includes a page devoted to tracking the status of Alien Enemies Act cases in federal courts. Find the page here.

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