Today on Lawfare: June 3, 2025

From The Lawfare Editorial Team

Compiled by Caroline Cornett

Articles

Avoiding Praetorianism in Civil-Military Relations

Kori Schake responded to Graham Parsons’s argument that the military has an obligation to resist legal orders when the civilian authority threatens civil society and the neutrality of the military. Schake argued that encouraging the military to disobey lawful orders endangers democracy and suggested that it is the role of other branches of civilian government, not the military, to check the executive’s power.

It is not “neutrality” for the military to assume the role of adjudicating constitutional interpretation, because inviting the military to become the balance of power among their elected civilian superiors is a genuine danger to democracy as well. In longing for someone to save us from the political problems of our own creation, Parsons recommended a course of action that would create a different problem, but one just as corrosive to democracy. Emboldening the military to ride in and save us from ourselves would be another kind of danger.

Regulatory Misalignment and the RAISE Act

Kevin Frazier explained why tort-based liability schemes to mitigate harms associated with artificial intelligence (AI)—proposed by New York's Responsible AI Safety and Education (RAISE) Act—will fail. Frazier highlighted how AI’s diffuse, rapidly evolving nature requires a regulatory system that can adapt as the technology develops.

Crafting rules that are both flexible enough to accommodate rapid technological evolution and robust enough to safeguard against significant risks is a delicate balancing act. Ill-conceived regimes risk stifling innovation, creating an unlevel playing field for competitors, or failing to prevent the very harms they aim to address. The RAISE Act serves as a case study of such a flawed approach. Asking whether the act fulfills the ideal aims of AI regulation—incentivizing innovation, fostering responsible development, providing redress, and ensuring predictability for all stakeholders—returns a clear answer: no. This conclusion should inform AI governance efforts in states considering similar models and provide insight into the present debate over allowing Congress to lead in shaping the AI policy landscape.

The Ukraine-U.S. ‘Minerals Deal’: Impossible Choice for a Nation at War

Mykhailo Soldatenko broke down the terms of the recently signed deal establishing the United States-Ukraine Reconstruction Investment Fund. Soldatenko emphasized that the agreement’s lack of security guarantees, uneven revenue sharing—determined by a yet-undisclosed partnership agreement—and more illuminate the difficult choices Ukraine faced in agreeing to the deal.

The publicly available information suggests that Ukraine likely traded robust commercial incentives for continued U.S. military assistance to defend itself against Russia for less or little revenue from the partnership in the long term. Indeed, the more assistance the U.S. provides, the less long-term revenue from the fund Ukraine would get. One member of parliament succinctly summarized the Ukrainian choice: “This is about the fact that the world is pragmatic and cynical, and we need to survive in it.”

The Situation: Has The Future of Violence Arrived?

Benjamin Wittes explained that although Operation Spiderweb—Ukraine’s weekend drone attack on Russian strategic bombers—is impressive given the asymmetry between Ukrainian and Russian capabilities, it does not rewrite the rules of war as some have suggested.

Yet that fact notwithstanding, I’m hesitant to declare that the future of violence has arrived. The reason is that Operation Spiderweb is still state-level violence. This is not the Leviathan having to contend with a school of little fishes and being bested by them. This is one leviathan being bested by a smaller leviathan, one which has deployed and refined the power of a great many little fishes. It’s no small thing. It’s definitely a data point. And I do think the book’s thesis is aging well. But Operation Spiderweb seems to me a complicated example of our point.

Podcasts

Lawfare Daily: Two Courts Rule Against Trump’s IEEPA Tariffs, with Peter Harrell: Scott R. Anderson sat down with Peter Harrell to discuss two rulings that enjoined President Donald Trump's tariffs, the similarities and differences between the courts’ decisions, what it might mean for the other uses of the 1977 International Emergency Economic Powers Act, and more.

Lawfare Daily: Escalation, Episode Four: The Worst of Both Worlds: In the fourth episode of Escalation—Lawfare and Goat Rodeo’s limited series narrative podcast chronicling the surreal twists and turns in the U.S. and Ukraine’s relationship over the years—co-hosts Tyler McBrien and Anastasiia Lapatina covered Ukrainians’ resistance to Russian interference in the 2004 presidential campaign and a 2008 NATO summit where the U.S. and European allies formulated a high-risk plan to protect Ukraine.

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