Today on Lawfare: May 8, 2025

From The Lawfare Editorial Team

Compiled by Caroline Cornett

Articles

A Politically Neutral Military Is Not Always Obedient

Graham Parsons argued that—in contrast to the prevailing notion that political neutrality requires absolute obedience to lawful orders—the military may justifiably resist extraordinary orders if they threaten civil society. Parsons highlighted how civilian leaders can use the military in ways that violate its neutrality and endanger the constitutional order.

For too long the theory of civil-military relations has failed to take this threat seriously. Many commentators have thought that the military has the same obligations to political authority regardless of the form that authority takes (democratic or autocratic). This misses the vital ways that the military’s relationship to authority is different in a democratic society. While it must respect civilian authority, in democratic societies the military cannot simply assume it is the instrument of elected leadership. There are times when, for the sake of civil society and the political neutrality of the state, the military should be insubordinate to civilian authority.

Our Reporters’ Notes on the May 7 Hearing in the J.G.G. Case

Anna Bower and Roger Parloff reported from a May 7 hearing on whether to certify J.G.G. v. Trump as a class action, with Chief Judge James Boasberg of the United States District Court for the District of Columbia presiding.

I do want to be careful here, says Kambli. Here's what I can present. There is no agreement or arrangement whereby the United States maintains any agency or control over the prisoners. There’s no constructive custody. And by that I mean no treaty, binding agreement or non-binding arrangement where El Salvador provides us the constructive custody of the people that we send them. What exists is a letter to El Salvador on the issue of the detention, but that letter does not provide constructive custody to the U.S.

But there's a notice of a four-million-dollar-plus grant to El Salvador, says Boasberg, dated March 22, which notes that the purpose of the grant is to provide funds to be used by El Salvador for its law enforcement needs, which include the cost of detaining the 238 people recently deported to El Salvador, right?

Pam Bondi Thinks Trump Saved Your Life

Katherine Pompilio fact-checked Attorney General Pam Bondi’s claim that the Department of Justice’s seizure of 22 million fentanyl pills in President Donald Trump’s first 100 days in office has saved more than 258 million lives.

You read that correctly. Trump has saved 258 million lives in a country of not even 340 million people—a country that had seen fewer than 75,000 deaths from fentanyl in all of the previous year. According to Bondi, were it not for President Trump in his first 100 days in office, approximately 75 percent of the American population would have died from a fentanyl overdose.

From Budapest to Hanoi: Comparing the COE and UN Cybercrime Conventions

Kenneth Propp and DeBrae Kennedy-Mayo discussed criticism of the recently approved United Nations Convention Against Cybercrime—particularly Russia’s role in drafting it and its departures from the 2001 Budapest Convention—as well as the ramifications should the U.S. not sign the Convention.

Critics, however, remain largely unmoved by the result. Many continue to regard the UN Convention as a dangerous expansion from the Budapest Convention, despite their substantial degree of parallelism. Commentators suggest that the UN Convention provisions concerning human rights protections are unlikely to significantly increase protections against the practices of non-democratic countries such as China and Russia, since it is ultimately up to countries to apply such protections within the context of their own legal systems. Others similarly aver that the Budapest Convention can be considered more demanding when it comes to adherence to human rights standards. Another worry is that the UN Convention provision for liability of legal persons (Article 18) lacks the express criminal intent requirement of the Budapest Convention. Platform companies’ legitimate content moderation practices thus conceivably could be considered criminal interference with electronic data.

Podcasts

Lawfare Daily: Resisting Democratic Backsliding: Laura Gamboa joined Quinta Jurecic to discuss democratic backsliding in Latin America, what it can tell us about the state of democracy in America today, and more.

Videos and Webinars

On May 9 at 4 p.m. ET, Benjamin Wittes will sit down with Bower, Parloff, James Pearce, and Preston Marquis to discuss the status of civil litigation challenging Trump's executive actions. If you would like to be able to submit questions to the panelists and watch the livestream without ads, become a material supporter of Lawfare on Substack or Patreon. It will be livestreamed on YouTube for all other viewers. If you can’t attend the live event, the recording will be available immediately afterward on Lawfare’s YouTube channel or later on the Lawfare Podcast feed.

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