Benjamin Wittes Profile picture
Senior Fellow at @BrookingsInst. Editor in Chief of @lawfareblog. Law Analyst for @nbcnews and @msnbc. It was snowing. And it was going to snow.
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7 Aug
Ten thoughts on the situation:
(1) The last line of defense of democracy is the hearts and minds of the citizenry. Where is your heart? Where is your mind?
(2) Our political culture has developed entire industries devoted to distracting you from the big picture. Round all these distractions to zero, and retain focus on the big picture. See if you can articulate in a single sentence the stakes in this election.
Read 11 tweets
31 Jul
Today I obtained the three DHS I&A intelligence reports on which @shaneharris reported yesterday--two concerning my Twitter activity and one concerning that of @ByMikeBaker of the New York Times. I am deeply grateful to all of those who have reached out with words of support.
Read 5 tweets
30 Jul
I will have more to say about this story after considering my legal options. For now, a few points...…
(1) It does not trouble me that DHS officials shared my tweets internally. That is certainly appropriate given that the tweets contained disclosures of information from DHS I&A. The contents of these intelligence reports are innocuous enough.
(2) What is troubling about this story is that I&A shared my tweets *as intelligence reporting,* that is, an intelligence arm of the government filed a report on a citizen for activity at the heart of journalism: revealing newsworthy information about government to the public.
Read 7 tweets
26 Jul
Internal memo from head of DHS I&A formally changing the blame for Portland violence from "Violent Opportunists" (VO) to Antifa.
FIR=field intelligence report
OSIR=open source intelligence report
Understand this document as responsive to POTUS pressure to "designate" Antifa as a terrorist organization.
And to Brian Murphy: I have read, and I acknowledge receipt.
Read 3 tweets
23 Jul
Here are four questions congressional intelligence committees should be asking regarding DHS intelligence operations vis a vis protestors:
(1) DHS I&A has a data exploitation team that can get all kinds of material off phones. It's normally used to assist with watchlisting. Is it being used to get material off of phones of those arrested in Portland?
(2) Is DHS I&A exploiting commercially available data about protestors from data brokers who collect such material routinely?
Read 5 tweets
2 Jul
Let’s face it, America: Our government has given up on any kind of public health response to COVID. This crime is a betrayal, as a result of which many people are going to die. It also means the response is on us. So let’s be as responsible and careful as our government is...
...being reckless and foolish. Let’s all live our daily lives as though nobody is going to do this for us. The cavalry isn’t coming, people. It’s just us.

That means act like you don’t have a government—just family, friends, and community.

Together we can lower the body count.
Read 2 tweets
29 Jun
Gosh, call me naive, but I think Roberts may be voting what he actually believes. His three big side-with-the-libs votes include:
(1) a genuinely close statutory question.
(2) a process question in which he took a stand for minimally competent lawyering.
(3) a basic stare decisis question on which his views may well be different from the other conservatives.

Isn't the best explanation for Roberts's behavior that he believes he is right?
Read 2 tweets
24 Jun
After a quick scan of the DC Circuit opinion on the Flynn case, three quick thoughts:
(1) I am confident the majority view on this panel does not represent the majority view on the DC Circuit, which greatly disfavors granting mandamus relief.
(2) I am not confident, however, that the full Court will hear the matter (though it certainly may), as the DC Circuit also greatly disfavors en banc review.
(3) I do expect Judge Sullivan to put the matter quickly before the full court, as he has little reason not to and his ability to manage his case is being challenged here by the defendant, the Justice Department, and the panel majority.
Read 6 tweets
23 Jun
This is both completely obvious and completely shocking.
Read 7 tweets
22 Jun
A friend just sent me a list of quotations this person had compiled asking me to decide whether each was uttered by Bill Barr or Ayatollah Khomeini. It was surprisingly difficult. I got 13 correct out of 15.
Ok, people want the list of quotations. Here it is. Note: while the friend is someone I trust a great deal, I have not personally checked the provenance of these quotations. Let’s see how the internet does with them.
1. “It is hard to resist the constant seductions of our contemporary society.”
Read 34 tweets
20 Jun
Thoughts on the Berman situation:

(1) The key question is why this is happening now. Is it because Berman has been too independent and decent in general? Or is it because of something that is going on right now?
(2) Berman’s statement may be teasing the latter possibility, but the language in the last sentence could also be boilerplate—the kind of things prosecutors say to impress upon others the independence of their work.
(3) The situation is horrid either way but the latter situation implies another acute rule of law crisis, whereas the former reflects a continuation of a pattern of abusive, retaliatory firings of investigators who do their jobs.
Read 6 tweets
18 Jun
Bolton book passages of interest—an idiosyncratic thread.

(1) p. 6
(2) p. 45
(3) For those who think the Trump admin leak problem is principally about deep state folks or Obama holdovers, p. 45:
Read 15 tweets
7 Jun
Yesterday on @inlieuoffunshow, I posed the question to the audience of how people can sustain the momentum of these protests without the sort of large public gatherings that are going to spread the virus and—in a few weeks—kill a lot of people.
A viewer reminded me of farmer protests in the 1970s, which involved people coming to DC from all over the country and driving VERY slowly around the Beltway. This sparked an idea.
What if, at a designated time, people all over the country blocked roads?

If you have a car, block a street with it or drive very slowly up and down a main drag.
Read 7 tweets
5 Jun
Today on @inlieuoffunshow, @Klonick and I will be joined by photographer @GailHalaban, who pioneered the window-to-window photography movement, which has caught fire worldwide in the age of quarantine. She will talk about the history of her work and show us pics!
Join us at 5:00 pm Eastern time.
On Zoom:
On YouTube:
Read 3 tweets
1 Jun
I am hereby formally designating Antifa an elephant.
While I'm at it, there are some other designations I would like to make.
I am formally designating the elephant as an endangered species in the mid-Atlantic states.
Read 8 tweets
30 May
@ccacy @SethAbramson It's an interesting question. Here's what we know. The entire CI and criminal investigations were sent to Mueller. Mueller set up a system in which he handled only the criminal questions and kicked back CI information to the bureau.
@ccacy @SethAbramson He resolved all of the questions he treated in the Mueller report. So it is theoretically possible that live CI questions remain at the bureau. That said, I don't believe any such questions are live. The reason, as I described in some depth at the time of the Mueller report...
@ccacy @SethAbramson that the Bureau has created an intense negative incentive structure against active CI matters involving Russia and Trump World. It has fired key people. It has humiliated others. A lot of agents have been disciplined. In that environment, it seems unfathomable....
Read 4 tweets
27 May
Gotta say @JeffreyGoldberg, you could do worse as a hashtag than #boringbutverynasty.
It would be amusing to have lots of your writers, on the same day, all write avowedly #boringbutverynasty pieces.
Read 3 tweets
18 May
Really interesting conversation with @teerahater about children's book writing and film storyboarding.
For those interested in Thyra's books:…
Read 5 tweets
16 May
Ok, let's do a fun experiment using the new @BotSentinel bulk blocker/analysis tool. Here is a tweet from the President, retweeting a tweet from @MZHemingway—both of whom attract a lot of people who rank high on @BotSentinel's trollbot scale. I chose this tweet because...
it contains a large number of replies (just shy of 5,000) but not enough to overwhelm the system, which is still in beta and can be a little glitchy, or take too long to run.
Let's set it running...
Read 6 tweets
16 May
Very much agree. It's a remarkable use of the podcast form, as I have tweeted earlier. It's made all the better by the series being pervasively pregnant with the current moment but never dwelling on it. It's a remarkable accomplishment. And everyone should study it who is...
...thinking about how to prepare remote learning materials well.
Read 3 tweets