Who gets to tell the military “no”?

That question has become even more important after the Pentagon pushed AI companies to loosen limits on how their technology may be used in war — including how much human control must remain over autonomous weapons. When Anthropic said no, it lost a major government deal. OpenAI stepped in, embracing the Pentagon’s more flexible standard instead. Now, thanks to new reporting from The Intercept, we’re getting a better look at what those negotiations actually entailed.

The OpenAI-Pentagon agreement included specific language on the type of AI models the DOD would receive: “OpenAI models that are designed for national security use cases and have minimal refusal rates.” That phrase — “minimal refusal rates” — means that the Pentagon is seeking models that rarely, if ever, tell it no. (According to The Intercept, a Justice Department lawyer representing the Pentagon confirmed this language, before backtracking only a few hours later.)

On the surface, that provision might seem reasonable. The military is a strictly hierarchical institution. When your senior gives you an order, you do it. Leaders generally have more battlefield wisdom and experience than their subordinates, so the rank and file can usually assume that their commanders know what they’re doing and follow along. Plus, in the high-stress, time-sensitive environments of most military operations, there is little room for discussion, explanation, or alternative proposals. 

So, if soldiers can’t refuse an order, why would a machine be allowed to? Who is a robot to tell its commander no?

There’s just one issue. Soldiers can refuse an order — when the order is illegal. In fact, they are legally required to. But by introducing technologies with a limited ability to challenge commands, the military may be making it harder to stop war crimes before they are committed.  

Humans have a duty to disobey

As outlined in US domestic, military, and international law, soldiers are only obligated to follow lawful orders, and they have a duty to refuse unlawful ones. 

The Department of Defense’s Law of War Manual is unambiguous: “Each member of the armed services has a duty to: (1) comply with the law of war in good faith; and (2) refuse to comply with clearly illegal orders to commit violations of the law of war.” Obeying an illegal order — as in a directive that violates the Constitution, US laws, international law, or directs one to commit a crime — can expose a service member, as well as their commander, to criminal liability. 

This “duty to disobey” has foundations in early British and American common law, but it achieved international recognition after the Nuremberg Trials against Nazi soldiers after WWII. 

In those trials, many Nazi soldiers argued they were not liable for crimes they committed during the Holocaust because they were simply following their superiors’ orders. Rudolf Hoess, the commander at the largest Nazi concentration camp, Auschwitz, himself explained: “In Germany it was understood that if something went wrong, then the man who gave the orders was responsible. So I didn’t think that I would ever have to answer for it myself.”

These defenses were unequivocally rejected by the court.

The tribunal held that obedience is not without limits, especially when a wartime act would be clearly illegal to the subordinate or any person of “ordinary sense and understanding.” If “I was just following orders” was an absolute defense, everyone involved in a crime would escape accountability, with the exception of the single highest-ranking officer. Instead, the court determined that individual moral and legal responsibility supersedes national or military chains of command for illegal acts.

Obedience is not without limits, especially when a wartime act would be clearly illegal to the subordinate or any person of “ordinary sense and understanding.”

But, when it comes to agentic AI systems or AI-assisted weapons, increasingly being used in place of human soldiers, does the same logic apply? And, perhaps more importantly, should it?

…But do machines?

When you use an AI chatbot, it does not simply reject queries it may not “agree” with. It does not say no to requests it doesn’t “like.” Instead, it follows a set of established protocols, much as a soldier should follow the law of war: It refuses requests that violate its terms of service. 

The military is using AI for far more consequential applications than a layperson using ChatGPT to, say, build a travel itinerary. So, what kind of world is created by the Pentagon’s request for AI that “minimally refuses” its directives, many of which may bear grave ethical, moral, or legal implications?

Rebecca Crootof, an expert on technology law and professor at the University of Richmond School of Law, told Vox that while the language could easily be read as increasing the likelihood of compliance with unlawful orders, or at least reducing the friction around them, “Minimal refusal doesn’t mean no refusal.”

“I both want to say it’s not definitely going to mean compliance with unlawful orders,” Crootof said, “but also acknowledge that identifying and evaluating what constitutes an unlawful order in the moment can be incredibly difficult.”

Even for human soldiers, disobeying illegal orders is neither simple nor easy. To the contrary, it doesn’t even happen that frequently. In fact, some legal scholars have argued that giving illegal directives in and of itself is an act of abuse against subordinates, who are not thoroughly trained in legal nuances, are conditioned to obey, and face prosecution if they make the wrong choice. 

Still, the mere fact that soldiers can disobey is an important constraint on commanders who might let battlefield conditions, or even commands coming from their own superiors, erode their ethics and commitment to the law.

Still, the mere fact that soldiers can disobey is an important constraint on commanders who might let battlefield conditions, or even commands coming from their own superiors, erode their ethics and commitment to the law.

Those who are optimistic about AI often argue that machines could be better at interpreting and applying the law than human soldiers. Machines can be trained on the law itself — drawing on a repository of legal cases, rulings, and battlefield data — which might make them more “knowledgeable” than an average soldier. And machines do not face the same pressures as soldiers facing prosecution for making mistakes, since they can’t exactly be held accountable; a problem to unpack another time. That, in turn, might make it easier for them to refuse illegal orders in the proper conditions. 

So, is the answer as simple as letting the machines decide? Not exactly. “This has been a desire and a drive by technologists for ages,” Crootof said. “What if we just put the law in the system and have it only do things that are lawful? Isn’t that going to solve things?” 

Interpreting and applying the law, though, is not a simple legal-illegal binary. “It’s very context-specific,” Crootof told me, “and honestly, that’s the kind of thing humans generally find difficult and AI decision-making systems are even worse at.” Often, determining the legality of an act comes down to subtle nuances you can’t program for: You’re allowed to target a combatant; you’re not allowed to target a wounded or surrendering combatant. You’re not allowed to target a civilian; you are allowed to target a civilian directly participating in hostilities. The difference between a legal target and an illegal one may come down to body language, clothing choices, or even battlefield intuition. 

As Crootof explained, “These are not the kinds of contextual analyses AI is good for.”

So what’s the solution?

Where human soldiers’ power to disobey would traditionally serve as an important check on the power of military commanders, if an imperfect one, replacing soldiers with machines that don’t have such safeguards removes one last layer of judgment over the use of force. And yet, machines themselves are not always capable of making the judgment calls that go into interpreting the law, so it may not be appropriate to let AI have the final say either.

So what’s the solution? Given the way AI technology has already been thoroughly integrated into the military, Crootof told me it may be somewhere in the middle. 

Rather than programming AI to refuse commands it interprets as illegal, Crootof said, “what it could be designed to do is flag those indeterminate zones, those gray-zone analyses, for human review or for a higher authority.” When a system picks up conflicting signals — an enemy soldier who looks like he may be surrendering, for example — it could prompt the commander to confirm their selection or remind them of applicable law. 

In this way, a check on commanders’ battlefield authority could be preserved without fully ceding judgment over the use of force to the machine. 

We don’t know yet whether OpenAI has equipped its “minimal refusal” models with such capabilities. But as those technologies become increasingly central to military decision-making, the public deserves answers sooner rather than later. 

Nationally, abortion has faded as a campaign issue. Four years after it helped Democrats stave off a red wave, candidates in battleground races are focusing their attention on cost-of-living issues, immigration, and policing. As of mid-August, abortion was mentioned in less than 5 percent of Democratic Senate ads, a key difference from the past two cycles, according to the Wesleyan Media Project.

Maine is different. As of September 16, Democratic advertisers had spent roughly 15 percent of their $40.8 million broadcast TV and streaming dollars on ads focused on abortion rights, according to Nate Schwartz from AdImpact. It’s one of the biggest topics there, he told me, after ads about President Donald Trump and healthcare. Planned Parenthood’s political arm is also making its biggest ad buy of 2026 against Susan Collins, at $600,000, and WinSenate, a super PAC aligned with Senate Democratic leadership, has spent 70 percent of its TV, streaming, and digital money in Maine on abortion-focused ads.

The target is Collins, the only Republican senator up for reelection in a state Trump lost in 2024, and one of Democrats’ best chances to flip a seat. Seeking her sixth term, Collins is running in a year when Democrats lead the generic congressional ballot by about 9 points. It’s also the first time she will face voters since Roe v. Wade was overturned — a decision Justice Brett Kavanaugh helped deliver after Collins, who has long described herself as “pro-choice,” cast the pivotal vote to confirm him in 2018. 

For the abortion rights movement, this is the race that has to work. Groups are pouring their biggest investments of the cycle into a state where fewer than half a percent of voters call abortion their top issue, in a year when Democrats have opportunities to win nearly everywhere. If a blue wave arrives and lifts every Democrat except the one running to avenge Roe v. Wade and remove the senator who famously sealed its fate, the organizations will have a harder time telling donors the issue still moves voters, and a harder time arguing that Republicans will pay a political price — even in blue states — for votes that restrict access to abortion.

“We know that abortion is the number one negative in Maine voters’ mind,” Lisa Margulies, a Maine spokesperson for Planned Parenthood Votes, told me. “It’s really the No. 1 dealbreaker.”

The first job for Democrats and abortion rights advocates is convincing Mainers the issue is still a pressing one. Seventy-two percent of Maine adults say abortion should be legal “in all or most” circumstances, and since Democrats took control of Maine’s government in 2018, the state has expanded who can provide abortions, required and subsidized insurance coverage for the procedure, eliminated most patient cost-sharing, loosened restrictions on care after viability, and shielded patients and providers from prosecution and lawsuits.

Collins has made that her defense. The Dobbs v. Jackson decision, she said in June, “has not had an impact on the state of Maine in that Maine actually expanded its law.” Advocates call that the central misunderstanding. 

“There’s this perception — and Sen. Collins herself has said it — that somehow Maine is immune, and that’s just not true,” Margulies said, pointing to their state-level efforts to keep access intact and to federal Medicaid cuts that have already hit Maine providers.

Also muddying the waters is the senator’s Democratic opponent. Collins is facing off against Troy Jackson, a longtime fixture in Maine politics who rose from the state House to the Senate presidency but fell short in bids for Congress in 2014 and governor this year. Early in his career, Jackson said that abortion “should never be legal” and that women should be required to view an ultrasound if they want to end a pregnancy. He has since renounced those positions and has earned 100 percent ratings from Planned Parenthood since 2017. (Jackson replaced Graham Platner, the original Democratic Party nominee, who quit the race after being accused of rape, an allegation he denies.)

While Collins prevailed for reelection in 2020 despite voting to confirm Kavanaugh, Democrats say her decision is much more salient for voters now that Americans live in a post-Roe world, one where more than 15 states have near-total abortion bans. 

If Collins loses, Democrats and abortion rights groups will say her Kavanaugh vote is no doubt partly why. A win for Collins would be harder to read, though the explanations that leave out abortion are already being prepared, including a messy nomination process that produced a candidate fewer voters were excited about, and a “unicorn” incumbent with decades of personal relationships across a small state and a long record of bringing federal money back home.

The abortion rights bet hinges on two things: that the Kavanaugh vote cost Collins something on top of what an unpopular president and rising gas prices already have, and that voters will judge Jackson by the positions he’s renounced rather than the ones he once held. 

The vote Collins won’t apologize for

When Collins voted to confirm Kavanaugh, she said she believed his assurances that he considered Roe v. Wade settled precedent. She had previously said that she would not vote for any nominee who expressed “hostility” toward the 1973 decision that established the constitutional right to an abortion.

As many observed at the time, Kavanaugh’s record gave strong signals that he would in fact vote to overturn Roe v. Wade. In her floor speech announcing her vote, Collins dismissed those warnings, suggesting opponents had been whipped into a “frenzy” by advocacy groups. When he ultimately did side with the conservative majority in Dobbs, Collins issued a statement calling the ruling “ill-considered.”

Four years later, though, Collins is doubling down on her vote for Kavanaugh, telling local media this summer that she does “not regret” it. “Given what subsequently happened to Roe, I don’t think that simply fades into the background,” Robert Glover, a political scientist at the University of Maine, told me.

Democrats are zeroing in on the fact that Collins has continued to confirm anti-abortion federal judges, even as recently as this month. Last fall she voted to confirm Joshua Dunlap, a Maine attorney, to the US Court of Appeals for the First Circuit over objections from 20 Maine organizations citing his record on abortion and marriage equality. 

“Susan Collins says she has no regrets about confirming the judges who overturned Roe v. Wade, and has proved it by continuing to vote for Trump’s right-wing judges,” Maine Democratic Party spokesperson Misha Linnehan told me in an emailed statement. “Now, her approvals are underwater, and she’s trailing with women voters because Maine women have had enough of being betrayed.” 

George Hill, the president and CEO of Maine Family Planning, told me Collins “defied” them with her vote for Kavanaugh, causing “irreparable harm” across the country. He emphasized how vulnerable Mainers are if Republicans retake control of state government.

Blake Kernen, a spokesperson for Collins’s campaign, dismissed the criticism about anti-abortion judges, emphasizing that her pro-choice boss also voted for 188 judges nominated by President Joe Biden, including Julie Rikelman, who served as litigation director of the Center for Reproductive Rights. Collins, she noted, is the only Republican who voted to confirm all three of the court’s liberal justices, and she voted against Amy Coney Barrett.

Margulies rejects this accounting. “We deserve better than, ‘Well, she’s not as bad,’” she said. “When it comes to reproductive rights, she’s not a moderate anymore.”

While her judicial votes are facing scrutiny, Collins has also spent decades building up a brand as a Republican willing to buck her party on abortion when the issue comes up in the Senate. 

In May 2025, Planned Parenthood Maine Action Fund published a memo online titled, “Senator Susan Collins’ long history of supporting Planned Parenthood and access to essential health care.” Among other things, the memo highlighted Collins for speaking out against proposed Medicaid cuts, for co-sponsoring a bill in 2022 to codify Roe v. Wade, and for opposing a 20-week abortion ban bill in the Senate. This past summer, the memo was quietly taken down from their website.

Asked about the removed page, Margulies didn’t say when or why it was taken down, but pointed to what she described as a sharp shift in Collins’s record over the past year, particularly on judicial confirmations. “There are times when she’s been true to her word and put Mainers ahead of politics, but she closed that chapter this year,” she told me.

“Because she is a Republican, the national groups continue to twist themselves into a pretzel to support these male candidates with terrible records,” Kernen said, referring to Platner and Jackson. 

So far, Mainers appear to have split Collins in two in their minds: There’s the dedicated public servant who puts her state first on one side, and the partisan Republican who sometimes disappoints them on the other. A University of New Hampshire poll over the summer found Collins rated far better on bringing federal dollars home to Maine than on her Supreme Court confirmation votes. Maine voters, Glover said, “have historically been willing to separate Collins from the national Republican Party and evaluate her through a broader lens of incumbency, independence, and constituent service.” 

The turnout math

Even if Democrats can win the argument on abortion around Collins, it’s an open question how much it will move votes. “Right now, I feel quite confident that affordability, healthcare, and good jobs trump abortion access by a long shot,” Dan Shea, a political scientist at Colby College, told me.

But abortion rights advocates believe the ranking obscures how the issue actually works. Mini Timmaraju, president of Reproductive Freedom for All, said her group has spent years testing how to talk to voters about abortion, consistently finding that it overperforms as an attack. “If you go to a voter in Maine and you say, what are your top three or five issues, they may not name abortion,” she told me. “But if you say to them, Susan Collins took the following vote — and one of them is Brett Kavanaugh, which led to overturning Roe — it is extremely salient, and it moves that voter.”

The Kavanaugh vote works, she argued, as a character verdict — “an indicator that you’re willing to side with extremism over your own constituents.” That, she said, is the piece that’s missing in the analysis of what voters say they care about. “It is one of the most salient attacks in Maine and in a lot of other parts of the country.”

Ashley Kirzinger, a pollster at KFF based in Maine, said priority rankings are a weak guide anyway, noting “the economy” means different things to different voters, and issues compete with candidate dynamics and party loyalty. What has changed since Roe’s overturn, she told me, is who the single-issue abortion voter is.

“Before the Dobbs decision, abortion was a motivating issue for Republican conservative voters,” Kirzinger said. “Now what we’ve seen is a complete shift.” Those voters are more likely to be Democrats, younger women and women of color, and include more people who don’t reliably show up in midterms.

Abortion messaging, therefore, is doing two jobs. The first is turnout. Kirzinger said the Kavanaugh vote is aimed at Democratic women “who are not as enthusiastic about Jackson as a candidate” and who “may be more motivated to turn out as a vote against Collins’ record on abortion rather than for Jackson.” In a tight race inside the margin of error, a couple of points of turnout could make the difference.

The second job is persuasion, and the target is older women, who reliably vote. Women made up nearly 60 percent of Maine’s turnout in 2020, and Collins won them by 3 points. What Democrats need from them is a switch, which is why many of the abortion ads are built around regret. One Planned Parenthood ad features a woman who voted for Collins and “will not make the same mistake twice”; WinSenate’s features a voter who “felt [Collins] was the better choice” and doesn’t anymore. 

Jackson’s change of heart

Complicating the race is Collins’ opponent, Troy Jackson, who is in some ways a mirror image of her own political persona: a Democrat with a history of culturally right-leaning positions to appeal to voters in the other party.

Jackson, who started his political career in the rural and fairly conservative county of Aroostook, used to earn 100 percent ratings from Maine Right to Life. In 2010, as CNN’s KFILE reported, when he filled out the group’s candidate questionnaire saying he thought abortion should never be legal, he declined to say whether there should be exceptions even to protect the life of the mother, for rape or incest, or because of fetal disability. Maine Right to Life, which has not issued an endorsement in the Senate race, did not return requests for comment.

Jackson told MS NOW he evolved on the issue thanks to “a lot of conversations over time” with women, doctors, and community members. “It became more and more clear to me that abortion access was healthcare,” he said.

In 2023, while serving as Senate president, he co-sponsored a bill allowing abortions after fetal viability when a physician deems them necessary, one of the most expansive such laws in the country. In 2024, he shepherded through the Senate a shield law protecting Maine providers and patients of reproductive and gender-affirming care from other states’ bans, despite bomb threats that emptied the statehouse and a letter from 16 Republican attorneys general threatening to sue. “Troy stood up for and never wavered in his commitment to reproductive rights during some really harrowing moments,” Margulies said, “when it would have been a lot easier to step down.”

“I’m rock solid on this now, and Susan has been the opposite,” Jackson said in an interview with Maine Public Radio this summer. Kernan, Collins’s spokesperson, has charged Jackson with flip-flopping for “political convenience.”

The national environment is looking strong for Democrats, and Jackson has been narrowly ahead in recent polls, though all have been within the margin of error. A CNN poll released this month found nearly two-thirds of Mainers feel negatively about the Dobbs decision, including about half saying it makes them angry. A Fox News poll in August found 55 percent worried Collins votes with Trump too often. 

Whatever happens, the explanations are ready. If Collins loses, abortion rights groups will cast it as proof that the issue still moves voters even where it doesn’t top their lists, and as a warning to all Republicans running in 2028. Timmaraju previewed the argument in our conversation: A loss would signal “a crack in the armor” of so-called moderates, and show that voters “are not going to tolerate” incumbents complicit with an extremist administration. 

If Collins wins, the groups that spent millions on abortion ads are unlikely to conclude that doing so was a mistake. Kirzinger pointed to the turmoil that followed the Democratic primary and the late swap of Platner for Jackson, which she said benefited Collins “in a way that is hard to capture in polls.” Glover, the political scientist, noted the things Mainers have always weighed alongside her votes, including decades of relationships, the Senate Appropriations gavel, and federal money. Even Timmaraju, the abortion rights leader, offered the same hedge in advance: A Collins win, she told me, “says more about Susan Collins and Maine than it does about 2028.”

A win wouldn’t show that judicial votes carry no consequences, Glover added. But if Collins holds substantial support among voters who support abortion rights despite the Kavanaugh vote and the fall of Roe, “that would certainly suggest limits” for retrospective accountability for downstream consequences of Supreme Court confirmations.

Though the race is supposed to clarify whether voters will punish elected officials for taking actions that restrict abortion access, it probably can’t — at least not definitively. It will decide, though, who holds the seat, and reproductive rights leaders have been clear that without a Democratic Senate, nothing they want gets a vote.

Mike Huckabee, the US ambassador to Israel, is a Christian Zionist who believes that Israel is biblically entitled to all of the Holy Land. He’s pretty much the last person you’d expect to condemn Israeli conduct in the West Bank, where settlers have spent decades using a combination of construction, coercion, and outright violence to push Palestinians off their own land.

Yet earlier this month, Huckabee went out of his way to denounce the behavior of some settlers — describing them as “band of terrorists” who had committed “horrible activities of criminal nature.”

Huckabee’s surprising outrage stems, in part, from their recent choice of victims. Last month, settler extremists besieged three Palestinian homes in the village of Qusra, including one belonging to American citizen Lou Ridi. About two weeks later, masked settlers beat up a NBC News crew while they attempted to interview Aida Ahmed Abdullah, a Palestinian who had herself had been forced from her home by settler aggression.

But Huckabee’s outrage reflects something deeper. Settler terrorism, once relatively uncommon, has exploded in severity in recent years — with wink-nudge support from Prime Minister Benjamin Netanyahu’s government.

The violence is so egregious, and so indefensible, that retired Israeli generals have compared the settlers to Nazis and demanded action to stop them. In mid-September, the INSS — Israel’s top national security think tank — issued a strategic alert warning that “Jewish terrorism” had become a national crisis and even an existential threat to Israel’s future.

“As history teaches us, democracies that fail to restrain radical forces within them do not survive,” the alert argues.

In Washington, settler terrorism against Palestinians has flipped the Israel debate on its head. Congressional Democrats, who have long been divided over the Gaza war, have come together to support legislation that would impose sanctions on Israeli politicians and corporations implicated in the violence. The Trump administration, the most pro-settlement White House in American history, has very conspicuously stood aside as Canada and European nations implemented sanctions of their own.

For now, the settlers are mostly getting away with it — because the government wants them to.

For now, the settlers are mostly getting away with it — because the government wants them to. While basically all Israeli governments have allowed settlements to grow, the current Netanyahu government includes coalition partners unusually aligned with their most radical goals: the ethnic cleansing of the West Bank. So long as they see settler terrorism as a useful tactic toward that end, and have the ability to stymie preventive measures and block accountability, the attacks will continue.

But if Netanyahu loses Israel’s election in October, and Democrats retake the White House in 2028, things might change dramatically. The political stars could align for a serious effort to change what Israel is doing in the West Bank — not just attempting to merely slow settler violence, but also challenge the broader apparatus of occupation that makes it possible.

In “conversations that I’ve had with congressional Democrats and their staff, this [settler violence] is the No. 1 issue that comes up, the thing they’re angriest about,” said Michael Koplow, the chief policy officer at the center-left Israel Policy Forum. “If you have a Democrat in the White House, this is something the Israelis are going to have to deal with — whether they want to or not.”

The rise of settler terrorism

Under international law, Israeli settlement in the West Bank is illegal: Countries are not permitted to move their own civilians into territory they occupied after a war. However, under successive Israeli governments — including the more peace-minded ones — the settlements have continued to grow. Many of those closest to the border function as suburbs of major Israeli cities; some further east, like Ariel, look like small cities in their own right. During the era when a negotiated solution looked possible in the near term, their growth was often seen as part of a bid to dictate the eventual borders of a Palestinian state — or blow up negotiations entirely — with “facts on the ground” that would be hard to undo.

While individual settlers live there for all sorts of reasons — for many, the housing costs are cheaper — the political movement overall exists to seize land from Palestinians and slam the door on the possibility of a two-state solution to the conflict. 

On a macro level, the physical placement of the settlements cut Palestinian communities off from each other, making it hard — basically impossible — to construct a contiguous Palestinian state so long as they remain standing. On a micro level, settlements are often placed in ways designed to push Palestinians off their land — by, for example, putting Palestinian-owned land into no-go zones enforced by the Israeli military. And politically, the population growth in settlements creates a powerful constituency in Israeli politics whose entire way of life depends on preventing a peace agreement that would require settlement evacuation.

Settler violence is the literal bleeding edge of this overall strategy. Violent settlers live in ramshackle communities, tiny villages on hilltops or herding outposts encroaching on Palestinian farmland, that are often illegal even under domestic Israeli law. The people living there are the hardest of the hardcore settlers: fanatically devoted to the idea that the land is theirs by divine right, and that they have every right to use force to push their Palestinians neighbors out.

Their tactics include everything from killing Palestinian livestock to cutting off their water supply to burning down their homes to outright beating and killing them. The violence is autonomous, in that individual settlers decide on what to do, but enabled by the overall strategic plan of the settlement movement.

“There’s no hierarchy deciding that this [specific] house will be attacked. The decision is that this area is an area of all our interest, so we need to subsidize herding farms there. And those bring violence, which lead to displacement” of the local Palestinians, said Yehuda Shaul, co-director of the Israeli think tank Ofek and a leading observer of the settlement movement.

Settler terrorism is not new, but it used to be comparatively rare. In 2012, Natan Sachs — a leading expert on Israeli politics at the Middle East Institute think tank — wrote an essay warning that the growth of the settlements, and the radicalization of some settlers, were creating a dangerous new violent movement of settlers.  

“Back then, it was a fringe thing among settlers,” Sachs tells me. “It has become much more mainstream.”

Israel’s current government, which took power in late 2022 and is by far the most radical in Israeli history, bears enormous responsibility.

“This particular government is enabling settler violence beyond anything we’ve ever seen,” said Yousef Munayyer, the director of the Israel/Palestine program at the Arab Center think tank in DC.

Minister of Finance Bezalel Smotrich, a settler living in a reportedly illegal home and a longtime advocate of ethnically cleansing West Bank Palestinians, is currently in charge of civilian administration in the West Bank. In effect, this allows him to use state resources to orchestrate a historic expansion of settlements across the West Bank — including the illegal outposts that many violent settlers call home. 

“This is his life’s work,” said Mairav Zonszein, a senior analyst on Israel-Palestine at the International Crisis Group. “He’s completely dedicated to this and he knows exactly what he’s doing.”

Minister of National Security Itamar Ben Gvir, also a settler, is if anything more extreme: For years, he hung a portrait of Baruch Goldstein, a terrorist who massacred 29 Palestinians at a holy site in Hebron, in his living room. Ben Gvir has, among other things, instructed the police forces under his authority not to arrest violent settlers and given thousands of weapons to settlers themselves.

In theory, the Israeli military and intelligence establishment should be a check on the extremists. Settler violence is not only illegal, but also a national security threat. Settler violence prompts Palestinian retaliation and, at times, even targets Israeli soldiers and police themselves. It can lead to international incidents, like those seen recently, that undermine Israel’s support with key allies abroad. The Israeli military is the ultimate authority in the West Bank; it could act on these concerns if it so chose.

In practice, however, they’re of little help. Israeli government data shows that, between 2005 and 2025, 94 percent of all investigations into settler violence fail to yield an indictment. The military will facilitate illegal settlements’ connection to the electrical grid. And its ranks are increasingly made up of “national religious” Jewish Israelis, a demographic that’s theologically on board with the settlement enterprise, versus more secular Israelis who primarily see the conflict through a security lens.

And after October 7, the Army dealt with a manpower crisis by significantly increasing the number of “regional defense units” — essentially bands of armed settlers that can be tasked with local security in the West Bank in lieu of regular soldiers. It emboldens violence in exactly the way you’d think.

So while the recent spike in settler terrorism can fairly be blamed on the Netanyahu government, the phenomenon itself is an outgrowth of the structural settlement growth Israel has condoned or actively pursued for decades.

“It’s all one set of policies,” said Ilan Goldenberg, senior vice president and chief policy officer at J Street, an American lobby that favors a two-state solution to the conflict.

How the violence could lead to a deeper break between America and Israel

Other than Israel’s government itself, the most important player in all this is the American government. As Israel’s chief diplomatic ally and military supplier, it has immense leverage that could be used to affect the West Bank (or anywhere else). Thus, changing American politics on Israel could quite directly produce a transformation on the ground.

Since October 7, Gaza has dominated American discourse over Israel — and it is arguably the most divisive issue in both the Democratic and Republican parties. Many Democrats (and a majority of rank-and-file voters) call Israel’s actions in Gaza genocide, a label others in the party strongly reject. While the Trump administration and most elected Republicans have stood behind Netanyahu, a faction — including Vice President JD Vance, Tucker Carlson, and a significant chunk of younger GOP voters — have grown increasingly critical of American military support for Israel’s actions.

But settler violence, specifically, might as well be another political universe. 

On the Democratic side, there is basically unanimous condemnation of what’s going on in the West Bank. Even Democratic Majority for Israel (DMFI), a leading pro-Israel advocacy group, believes that Israel is erring here.

“DMFI unequivocally condemns attacks by violent Israeli settlers against Palestinians in the West Bank. Israel’s government must move beyond just words and take definitive action to protect civilians, and ensure that those responsible are held accountable,” Brian Romick, DMFI’s president, told me.

Last year, US Rep. Jerry Nadler (D-NY) — an influential progressive pro-Israel voice in Congress, where he’s long represented some of the nation’s largest Jewish communities — co-authored the West Bank Violence Protection Act, legislation that would sanction violent settlers and their enablers. The law would effectively codify an executive order issued by President Joe Biden in 2024, but scrapped by President Donald Trump upon taking office. 

The key question going forward is what this political dynamic means for policy.

More than 170 House Democrats and 45 senators have cosponsored it, the vast majority of Democrats in both chambers. Goldenberg, whose J Street outfit has been a leading voice supporting the law, says rallying support for it has been easy.

By contrast, no Republicans have cosponsored the bill. When you combine that with Trump reversing the Biden order, and his broader enabling of settlement expansion, you might think that the administration would be willing to take Israel’s side in the argument over settler violence.

Yet that’s not been the case — and it’s not just Huckabee freelancing. Earlier this month, when Canada, the UK, and France imposed significant sanctions targeting settlements, Secretary of State Marco Rubio pointedly refused to condemn these allied policies, saying that neither he nor Trump had any comment on their decisions.

“Obviously, we’re not going to do what the UK did. [But] we share the goal of stability: we don’t to see an uptick in violence or conflict or tensions in the West Bank,” he told reporters on September 8.

Settler terrorism, then, has a remarkable effect on both parties: Democrats in Congress go from fractious on Israel to united, and the Trump administration goes from Israel’s chief defender to a tacit enabler of allied pressure campaigns against it. Why?

I put this question to all the experts I spoke with, and everyone offered a basically similar explanation: that settler violence is morally and politically straightforward. Even the most hardline pro-Israel advocate, ones who rationalize mass civilian killing in Gaza as necessary to destroy Hamas and restore Israel’s security, blanch at videos of armed settlers beating up on defenseless Palestinians, which cannot be justified on the same grounds. Virtually nobody in American politics wants to be in a position of having to defend this kind of thing, and many of the most influential pro-Israel voices on the American side do not share the settlers’ extremist ideology.

“There aren’t two sides…it’s just one side terrorizing the other,” Israel Policy Forum’s Koplow said. “There are literally WhatsApp groups and Signal groups run by the Israelis perpetrating the violence where they themselves boast about it.”

On the White House side, there are also Trump priorities that the violence complicates. In his comments about the allied sanctions, Rubio said instability in the West Bank “has implications as well on our ability to make progress on Gaza, on the 20-point plan, and the Board of Peace that we’re very committed to.” However serious you think these initiatives are — there are very good reasons for skepticism — the White House seems to at least be publicly concerned about violence derailing it.

The key question going forward is what this political dynamic means for policy. While the Trump administration may not be willing to go out of their way to defend settler violence, they’re not exactly going out of their way to try and shut it down either. Huckabee’s comments about “terrorists” are symbolically significant, but the reversal of the Biden executive order speaks about the limits of this stance for actual policy. 

Democrats, by contrast, are clearly animated by the issue and willing to act on it. The question is what exactly those actions entail — especially if they retake Congress in 2026 and the White House in 2028.

Here, there’s real disagreement between the experts. 

Skeptics suggest that there may be less substance here than it appears. Targeted sanctions against some violent settlers might matter on the margins, but unless they go after the settlement enterprise and US-Israel relationship more broadly they’re leaving the root cause of the problem intact. In the worst case, a focus on settler violence specifically might even be counterproductive — functioning as a kind of pressure release valve that allows Democrats to satiate their increasingly Israel-critical base without actually doing much that matters.

Such a focus “creates, in a lot of ways, more problems than it solves,” the Arab Center’s Munayyer said. “It reinforces this idea politically that it’s too risky politically to hold accountable the actual decision-makers in the Israeli government, and the real processes at play here — which are driven by the state.”

Others see this as a misread of the political dynamics — one that Sachs of the Middle East Institute called “too cynical by half.” On this line of thinking, targeted action on settler violence is just morally necessary: the violence is really terrible, and if the United States can curtail it even on the margins it matters.

Moreover, they argue, something like sanctions on West Bank settlers opens the door to broader action: creating a real precedent for punishing bad actors in Israel that could create a kind of ratchet dynamic for future action taking on the deeper Israeli policies behind settler violence.

It’s hard to say in advance which of these views are right. Experts in both camps say there’s a lot of uncertainty here: we don’t know what will happen this November, let alone who the Democratic 2028 nominee will be or whether they’ll win. A Democratic trifecta with President Alexandria Ocasio-Cortez would likely be quite different than, say, a divided government with President Mark Kelly.

But either way, how Democrats handle the settler violence question could well be an indicator of where the party is going to go on the US-Israel relationship more broadly — and, by extension, the future for Israelis and Palestinians alike. 

When we think about the stakes in healthcare, we tend to think of them in terms of life and death, being sick or being healthy. The conversation is about your physical well-being and maybe your mental health — and it pretty much stops there.

But health affects so much more than your body’s biology or even just you personally, as a new survey from Gallup and Pivotal, a philanthropic group founded by Melinda French Gates, shows. That’s especially true for women, who frequently report negative experiences with the health system and ongoing struggles to get their concerns taken seriously; poor health affects the trajectory of their careers and their ability to be engaged with their families, friends, and wider community.

It starts at the doctor’s office or hospital: 51 percent of women say they have had a negative healthcare experience in the past five years, versus 39 percent of men. About one in three said that a doctor did not take them seriously when they said they were feeling pain or other symptoms, versus 21 percent of men, and 33 percent said that they either were misdiagnosed or did not receive a diagnosis. The cost of paying for care is another deterrent: 32 percent of women said they have skipped or delayed care in the past year because of the cost, compared to 25 percent of men.

“To see that half of women in the United States who sought care in the last five years came out feeling like they hadn’t gotten the help or care they needed, that’s frankly staggering,” French Gates told me in an email. “It says a lot about how little we’ve invested in women’s health and how much we expect them to just push through pain or accept uncertainty.”

And the effects of those experiences, the failure to receive proper treatment, ripples out into the rest of the women’s lives. More than half of US women, 54 percent, said they had experienced at least one health-related impact on their family life or relationships; 42 percent said their health had led to a negative effect on their career or work. It also affects their community: 32 percent said their health had affected their ability to participate in civic life.

The toll is not only physical but mental: 48 percent of women said they’d dealt with a mental health condition like depression or anxiety. And socioeconomic disparities abound. Black and Hispanic women are more likely to report being in poor or fair health. Women who have lower incomes are more likely to face career struggles because of their health than those who make more.

I had the opportunity to interview French Gates, who has made women’s health a priority in her work, over email about the survey; its findings on community engagement, menopause, caregiving, and more; and what could be done to address the problems that it reveals. Our exchange is below, lightly edited for clarity and length.

Which of these survey findings surprised you most and why?

The number of women [54 percent] who said they experienced a mental health challenge during or after pregnancy should stop us all in our tracks. And the fact that less than one in three women who sought care found it helpful is really concerning. It’s why I feel so strongly about integrating women’s mental and physical healthcare, especially during pregnancy and postpartum. Mental and physical health are so linked together.

Too much of the burden is placed on women to get answers. All of us deserve so much better.

Nearly one-third of women said in the survey that health problems limited their ability to be involved in their community. What does that look like in practice, and what do communities lose when women can’t fully participate?

Women are so often the backbones of their communities, whether they’re rallying their neighbors around a cause, leading the PTA, or serving in elected office. Without having women — and their ideas and voices — in those roles, we’re missing half of the conversation. Issues that affect women and families are less likely to get on the agenda. They’re less likely to be solved.

When a woman has a health challenge, and she has to spend so much of her time and resources chasing down answers, that makes it harder for her to show up in those spaces. We saw that in the survey: 30 percent of women said their health limited their ability to be involved in their communities. And when women couldn’t get the care they needed, that percentage doubled.

Women’s health is often talked about as a personal issue, but this data is helping us prove that it’s also an economic issue, a family issue, a community issue — it affects all of society.

Caregiving and family responsibilities prevent many women from getting medical care, in particular Hispanic and Black women. That seems to create a vicious cycle: Women are often so busy being the caregivers in their families that they neglect their own health. Eventually, they are the ones who will need care.

What do you think can be done to break that pattern? Is there a philanthropic solution? What public policy changes could be made?

Women are often taught to put themselves last and minimize their own needs. They don’t always have time to care for themselves because they’re so busy caring for others. And they might not be able to afford childcare or home health support for their aging parents. Our survey showed one in six women delayed healthcare because of their responsibilities caring for their family members. For Black women it’s one in five, and Hispanic women one in four. Too many women are facing an uphill road to even just get to a doctor’s office.

It’s possible to make it easier for people to balance healthcare and family responsibilities — but it’s going to take action from many angles. That’s exactly why I invest in both women’s health and in caregiving, and I’d encourage more philanthropists to do the same. Businesses can also support employees with good paid leave policies and reliable but flexible schedules.

But for women everywhere to benefit, we need government leaders to prioritize increasing access to affordable childcare, home health supports, and paid family medical leave. These are policies that have the support of large majorities of Americans because these are issues that affect everyone. So there’s a real opportunity here to offer meaningful help to families.

I am struck by our collective failure on menopause: Women report that they aren’t aware of menopause symptoms until they experience them on their own, that they struggle to get their doctor to take menopause symptoms seriously, and that their menopause experience has held them back in their career. What are some short-term and long-term steps we can take to address those problems?

“Right now, women need better care at critical moments in their lives.”

If more than a third of women only learn about menopause symptoms when they go through them, the system is clearly not working. Women need to learn about menopause from their doctors before they experience it. But doctors aren’t getting the education and training they need on menopause while they are in school. One doctor told me she got just one lecture on menopause across all her years in medical school. One said it was mentioned one time. They are seeking out better training but it can be hard to find. That’s why Pivotal is partnering with the Menopause Society to expand physician training on menopause so doctors, nurses, and other healthcare providers can access the information they’re looking for to better help their patients.

Because menopause isn’t just about being uncomfortable; it can also bring anxiety, heart palpitations, insomnia — significant symptoms that can really hold women back. More than a quarter of women who’ve experienced menopause or perimenopause said it made it harder to live up to their full potential at work. One in 10 had to take leave or leave their jobs entirely. That just shouldn’t be. Women shouldn’t have to step back right at the moment when they could be stepping into leadership roles.

The most immediate steps can come from policymakers, especially at the state level. They can include menopause care in insurance and Medicaid coverage and offer workplace protections to women in menopause the way they do for pregnancy, so women can get the care they need without losing their jobs. I’m also focused on longer-term solutions, like expanding training for healthcare providers and investing in research to accelerate treatment options.  

Women are at the forefront of a lot of wellness trends these days and yet, as the survey reveals, women also report encountering a ton of health misinformation on social media. Why do you think women are so often the targets of this kind of content? What can be done to point women toward and build their trust in sound medical information?

One in three women said she left an appointment without a diagnosis, with her pain being dismissed, or with no answers or next steps. You can understand why those women would start looking for information online. And because women’s health has been underfunded and under-researched, there just isn’t as much reliable information out there as there should be, which leaves a lot of room for people to come in with misinformation. Investing in credible scientific research to fill that vacuum will give both women and their doctors more information going into their appointments.

In terms of your own organization’s work, which investments are you making that you think can make progress on the underlying problems revealed in this survey?

We need to address the right now and we need to address the longer term. Right now, women need better care at critical moments in their lives.

One way we’re investing in that at Pivotal is by making it easier for women to get the mental healthcare they need during and after pregnancy. So we are investing in integrated models that put mental and physical healthcare under one roof. I visited a health clinic in Alabama earlier this year where they identify issues like depression and anxiety right at the outset and then help the mom all the way through her pregnancy care, all in the same place. That model is something we strongly believe in.

Better care for menopause will require better training, which we are thinking about in both the immediate and long term. I mentioned that we’re making more menopause training available to doctors who are currently practicing. That is something I’m really excited about because I’ve heard from physicians who really want to better support their patients and are looking for better information so they can do that. And longer-term, menopause needs to be a much bigger part of the curriculum at medical schools moving forward.

Another longer-term focus of ours is trying to make up for decades of lost time in research. We are funding medical research focused on how diseases specifically impact women, in partnership with an innovative organization called Wellcome Leap. They are working to accelerate progress in women’s health on everything from autoimmune diseases to cardiovascular disease in years, not decades, which is how long health breakthroughs usually take. That’s the kind of urgency women need and deserve.

A decade ago, insulin became the poster child for America’s out-of-control drug prices. The 2017 death of Alec Smith, who was rationing his insulin before he died, and repeated price hikes for a 100-year-old medication (the patent for which was originally sold for $1 to a university to prevent it from being exploited commercially) sparked widespread outrage that a lifesaving medication could be unaffordable to the people who depend on it to survive.

And then politicians actually acted. Starting with a Colorado law passed in 2019, states began passing laws capping the out-of-pocket costs for many people who take insulin; 27 states (plus Washington, DC) now have such a policy. Then in 2022, Congress included a provision in the Inflation Reduction Act that established a $35 per month cap on insulin prescriptions for people on Medicare. Given the national response — drugmakers also made splashy public announcements about reducing the cash price that uninsured people pay — you would be forgiven if you thought this was the one health care cost crisis that the US had genuinely managed to solve.

But the diabetes community has a dire warning: It’s not over. Millions of people continue to struggle to pay for their insulin and having their long-term health put at risk because of, in the words of one advocate who put it bluntly, pharmaceutical greed.

“There has been so much attention and promise to action around the insulin price crisis. … There has been so much action,” said Shaina Kasper, executive director of T1 International, a global nonprofit that advocates for people with diabetes. “And shockingly, frustratingly, critically, the data from our 2024 survey showed that the rationing rates were worse than ever. Ultimately we’re facing such immense and monstrous corporate greed. … When we put a Band-Aid on one hole, another one’s going to find a way to pop out and keep profits high.”

Fixing the insulin crisis will require a multifaceted approach: drug pricing reform, insurance mandates, and possibly even public manufacturing. Out-of-pocket caps, Kasper said, were always a temporary fix for a very broken system. There is still a lot more work to do.

Why so many Americans still struggle to afford insulin

Both national and local surveys indicate that the policy changes of the past decade have not had the desired effect.

A study published last year from researchers at the Yale Diabetes Center found that people treated there were rationing insulin at the same rate in 2024 as they were in 2017; about one in four people reported some rationing due to the cost of the drug in both years. When you added in the people who rationed because of insurance delays or supply limits, more than one in three people — 38 percent — were still having trouble keeping this lifesaving medication on hand in 2024. A 2024 T1 International survey likewise found that nationwide, 34 percent of the Americans who use insulin reported rationing the medicine. (About 8.4 million people in the US rely on insulin to survive.)

Dr. Kasia Lipska, an endocrinologist and researcher who treats patients at the Yale Diabetes Center and who co-authored that study, was surprised by their findings.

“I was surprised because I’ve been looking at the policy and advocating for policy change; you think things are moving, they should be really improving,” Lipska said. “But if I talked to the nurses and our staff at the Yale Diabetes Center, they told me, ‘Of course they haven’t changed. We’re still hearing these stories.’”

How could this be? The explanation is multifaceted, according to Lipska and Kasper. 

“There’s just still a lot of holes in one who is covered by various protections and then how they’re covered and how they access this,” Lipska said. “It’s not as simple as just showing up at the pharmacy and asking for your insulin, and the sticker price is there, and that’s what you pay. It’s extremely complicated.”

For starters, millions of Americans remain uninsured and have to pay the cash price for drugs. While drugmakers make flashy announcements about helping those people, the process of enrolling for savings cards to get those lower prices can be a nightmare; one congressional investigation found in 2023 that uninsured patients were still paying an average of nearly $100 for insulin despite Eli Lilly’s pledge that its generic product would be available for $25 per vial. Even if you manage to get your discount card, the same investigation found that Lilly introduced several restrictions based on geography and needs, and that the specific insulins that are subject to these voluntary price caps are often out of stock at the pharmacy when people go to fill a prescription (while the more expensive brand name version is consistently available).

And then there are the loopholes in those existing federal and state laws. The federal $35 cap applies only to Medicare; the private insurance that covers half the country is excluded. (There have been bills proposed to extend the cap to private coverage, but they have not gone very far in Congress.) The state laws that do exist typically apply only to small-group and individual plans that are subject to state regulations; larger self-funded plans are exempt from state mandates and currently have no enforced limit on out-of-pocket insulin costs. One national estimate found that around 775,000 people who use insulin and had private insurance were protected in 2025 by the caps in states where they’d become law. But more than 1 million people in those states were not, nor were the 2.1 million commercially insured insulin users in states without a cap.

Even for people who benefit from the mandatory out-of-pocket caps instituted by Medicare and state laws, some of them still struggle to come up with $35 a month, given all of the other price hikes Americans have faced since the pandemic. They may have to navigate a complex process in order to actually receive the promised discount. And while a $35-per-month cap sounds straightforward, in practice, people can still face higher costs. Each individual person requires a unique amount of insulin and, for some of them, they might need two different kinds; the pharmacy may not have the right version and will make substitutions that lead to higher costs. That’s how one of Lipska’s patients ended up paying $140 per month for his insulin — despite being on Medicare.

“These things really add up…and frustrate people,” she said, “because what seems like a great idea is not actually how things work on the ground.”

The consequence is that, despite all the legislative activity and self-congratulations, millions of Americans are still at risk of serious health problems because they can’t get insulin.

The worst-case scenario is what happened to Alec Smith: Somebody is forced to spread their insulin so thin that they put their life is in danger. When diabetics have their blood sugar spike without insulin on hand, they can go into diabetic ketoacidosis, “which literally means your blood is turning into acid,” Kasper said. “I can speak from experience: it feels like you’re dying.”

To recover from an episode, they may have to go to the emergency room and end up taking even more insulin while eating in order to get their body back to equilibrium. But even short of an emergency, Kasper said, people who resort to rationing insulin can experience significant side effects. Prolonged high blood sugar due to rationing could lead to serious vision and nerve problems that were supposed to be a thing of the past once insulin became available.

Those were the scenarios that lawmakers wanted to prevent as they tried to make insulin more affordable. But they remain a very real threat for too many people.

The big idea that could make insulin truly affordable

If there’s good news to be found, it’s that the advocacy community is not giving up. They are sounding the alarm about the ongoing affordability crisis and urging Congress to act. But they do worry that the issue has become less urgent: The truly comprehensive mandate for insulin out-of-pocket caps, which is typically introduced every Congress, was delayed this time. “This year, neither bill was introduced for over a year, and it was very concerning,” Kasper said.

But they are also placing bets on something much more profound than a price cap: the government itself procuring or even producing insulin and making it available to people at the lowest possible cost. 

“This idea that medicines should be for people and not for profit I feel like is really catching,” Kasper said. 

Some states are taking baby steps in that direction: Oklahoma passed a bill this year that would offer government funding for private companies that pledge to produce insulin and sell it at a low price. 

Others are going bigger. As I reported in 2023, California has launched a program that is eventually intended to lead to government-owned facilities producing insulin to be sold on the cheap, though it will take years until publicly owned production begins. The New York state Senate approved a similar plan this year, although funding for it didn’t make it into the state’s budget. Kasper said that she is optimistic the project will make it into next year’s spending plan, and says a lot of work is currently being done to ensure it happens.

In the future, public manufacturing could also help to address the supply problems that continue to pop up. There are only three insulin manufacturers in the US right now. As those for-profit pharmaceutical companies place more emphasis on GLP-1 production — which often takes place in the same facilities as insulin production — nonprofit initiatives could fill in the gaps.

“In this time of tariffs even, with these concerns around shortages and rising prices and the corporations having this monopoly and price gouging ordinary Americans for decades now, as we’ve seen on insulin, let’s just make it ourselves,” Kasper said.

This is a long-term vision; if you need help right now, T1 International has resources to help people get health insurance, access discount programs, and even find emergency insulin. But a more affordable future for insulin will only be possible if lawmakers feel compelled to act. Public outrage created one round of reform, but the risk of political complacency is real. So if you care about this issue and want to get involved, T1 International also has a tool kit for people who want to advocate for policy changes, including around public pharma.

“The general communication that we’ve been hearing is that the insulin price crisis is over,” Kasper said. “Everyone should have access to a $35 copay for insurance. As the data shows, as we’ve been talking about, that is just not true.”

If you felt a gust of wind late on Friday, it came from hundreds of immigration lawyers who simultaneously exhaled after the Supreme Court announced it would not hear a case known as Genalo v. Black. That case asked whether certain immigrants could be held in immigration detention facilities indefinitely without ever receiving a bond hearing or other opportunity to seek temporary release. And if the Court had decided this case, its recent immigration decisions suggest that most of the justices may have blessed indefinite detention.

The Black case originally concerned two lawful permanent residents of the United States who were arrested during the first Trump administration because of crimes the two men committed years before, and that they had already served prison sentences for committing. 

These immigrants were arrested because of a federal law, which provides that the federal government “shall take into custody” noncitizens who committed certain crimes or who are accused of involvement with terrorism so that the government may begin deportation proceedings against these individuals. This law does not allow these noncitizens to challenge their detention while their deportation case is pending. (Notably, the relevant federal law sometimes allows an immigrant to be detained without hearing if they are merely suspected of terrorism, which means the person could be detained indefinitely based on false allegations.)

Both men sued, claiming that it is unconstitutional to hold them for too long without some kind of hearing to determine whether they should be released after paying a bond. And a federal appeals court agreed, holding that “due process bars the Executive from detaining such individuals for an unreasonably prolonged period…without a bond hearing.” 

Thus, Black was more than just another flash point in America’s debates over immigration. It was a test of one of the most fundamental protections that a liberal society provides to its residents — the right not to be locked up, forever, without any way to challenge the basis of that detention. 

Now that the Supreme Court has removed the Black case from its own docket, this appeals court decision will not be formally repudiated by the Supreme Court. So immigrants who are detained indefinitely may still ask courts to give them a bond hearing — at least for now.

Still, the Court’s nondecision in Black leaves a cloud of uncertainty hanging over similarly situated immigrants. The Trump administration will no doubt continue to detain people for prolonged periods of time (most of whom won’t be able to obtain a gubernatorial pardon, like one of the men was in this case). And the question of whether these immigrants can be detained forever will remain unresolved until the Supreme Court takes up another case involving a similarly situated immigrant.

Why the case was dismissed 

Both men at the heart of the Black case spent significant amounts of time in immigration detention facilities years after serving sentences for crimes. One, a Jamaican citizen named Carol Williams Black, spent seven months in an immigration detention facility. The other, Keisy Guerrero Mariano, spent 21 months in detention without a bond hearing or other procedure that could allow him to seek release while his case was pending. These 21 months in immigration detention more than doubled the time he spent in New York state prison for his actual crime — he pled guilty to second-degree assault after he got into a fight outside a New York City restaurant.

But there is no longer a legal dispute about what should happen to either man — in the words of the law, both cases are now moot. Black has since been released from detention and says that he “made the difficult decision to leave the United States” and has no intention to return. And the Trump administration’s case against Guerrero Mariano went up in smoke in late August, after New York Gov. Kathy Hochul gave him a pardon — thus wiping away the conviction that allowed the Trump administration to detain Guerrero Mariano in the first place.

Guerrero Mariano is one of six individuals that Hochul pardoned at the time. In her official announcement, she said that she did so because these six people “have demonstrated remorse, exemplified rehabilitation and displayed a commitment to improving themselves and their communities.”

There’s also a great deal of evidence indicating that Hochul pardoned Guerrero Mariano in order to resolve his immigration case — and potentially keep the Supreme Court from deciding Black. Among other things, the actual pardon document signed by Hochul specifically states that it will grant Guerrero Mariano “relief from removal.” Guerrero Mariano’s lawyers had sought this pardon, and Hochul granted it mere days before his brief was due in the Supreme Court. 

That brief’s very first sentence, moreover, states that Hochul “granted Respondent Keisy G.M. a full and unconditional pardon of the state criminal conviction that is the sole basis for his removal,” and it urges the justices to dismiss the case as moot.

Last Thursday, Trump’s Justice Department joined a stipulation calling for the justices to dismiss the case against Guerrero Mariano, most likely because even they recognized that a lawful permanent resident with no conviction may not be detained. The Court granted that request on Friday.

So that’s good news for Guerrero Mariano, who presumably will now be able to live freely in the United States. 

Guerrero Mariano’s lawyers were right to fear a trip to the Supreme Court

It’s possible that the Supreme Court might have agreed with the lower court’s holding that immigrants who are detained for an “unreasonably prolonged period” have a constitutional right to a bond hearing — this Court has, on rare occasions, broken with the Trump administration in immigration cases. But those decisions are few and far between.

Among other things, this Court has allowed President Donald Trump to deport immigrants back to war zones. The Court’s Republican majority effectively nullified the Convention Against Torture, a treaty that is supposed to protect immigrants from being deported to nations where they will be tortured. The Court also blessed so-called Kavanaugh stops, which permit suspected immigrants to be racially profiled so long as their race or ethnicity isn’t the sole reason why they are stopped by law enforcement.

Moreover, while the US Court of Appeals for the Second Circuit’s decision in Black — the one holding that immigrants like Guerrero Mariano may receive a bond hearing if their detention is “unreasonably prolonged” — reached a plausible legal conclusion, this conclusion was not a slam dunk under the Supreme Court’s previous precedents. And that means that the justices could have easily come up with a reason to reverse that decision if they wanted.

On the one hand, the Court said in Zadvydas v. Davis (2001) that “a statute permitting indefinite detention of an alien would raise a serious constitutional problem.” On the other hand, the Court held in Demore v. Kim (2003) that an immigrant similarly situated to Guerrero Mariano may “be detained for the brief period necessary for their removal proceedings.” 

Read together, these decisions suggest that the government does have some power to detain people while their immigration case is pending. While Zadvydas indicates that this detention can go on for too long, the Court has never established when an immigrant’s detention has stretched too long. So that means that the justices would have a fair amount of leeway to allow prolonged detentions without defying any of their previous precedents.

So it’s clear why everyone from Guerrero Mariano’s lawyers to Hochul seemed concerned about what would happen if the Court decided this case. In the worst-case scenario for immigrants, Trump could have gained the power to lock many people up for years without any meaningful way to challenge their detention. In the best case, the Supreme Court may have reached the same conclusion as the Second Circuit — but even that decision was vague about how long an immigrant must be detained before they must receive a bond hearing.

In any event, the bottom line is that the Court’s decision to dismiss the Black case is good news for Guerrero Mariano. But that dismissal merely delays a reckoning for other immigrants who face prolonged detention while their case is pending.