Amicus Brief in Anthropic PBC vs. Department of War, D.C. Circuit Court of Appeals

Several charter members of the Society for the Rule of Law—including our Board President Alan Raul—have joined in filing an amicus brief in Anthropic, PBC, v. U.S. Department of War et al., urging the United States Court of Appeals for the District of Columbia Circuit to grant relief against the Department of War’s designation of Anthropic as a supply-chain risk.

The brief argues that the Department of War’s actions are unlawful because they fail to abide by existing supply-chain risk statutes and they violate fundamental constitutional guarantees. First, designating Anthropic as a supply-chain risk is a pre-textual retaliation against Anthropic’s refusal to allow its products used for mass surveillance of American citizens or lethal autonomous warfare.

…The designation of Anthropic is purely pretextual. This is punishment, not agency process. The statutory predicates for designation as a supply chain risk were not met, the statutory procedures were not followed, and the relevant policy tradeoffs were not considered. The designation was arbitrary and capricious, and therefore unlawful. See Dep’t of Commerce v. New York, 588 U.S. 752, 784 (2019).

Second, the brief condemns the Department of War’s actions as unconstitutional, because they retaliate against Anthropic for exercising its First Amendment rights and because the employment of unilateral, extrajudicial punishment violates the Constitution’s Bill of Attainder clause. The amici write:

…The designation also violated the Constitution. As a private company, Anthropic has the right to configure its products as it sees fit for lawful uses, just as the Department of Defense has the right to refuse to contract with Anthropic should it prefer a different product… The First Amendment of the Constitution bars the government from punishing Anthropic based on its speech or political values—including conscientious beliefs regarding the dangers of certain uses of its system. Likewise, the Bill of Attainder Clause forbids punishment without judicial process, as well as the use of the threat of such punishment to try to compel compliance with government demands.

The amici from the Society for the Rule of Law include our Board President Alan Raul, our Board Secretary Peter Keisler, our Treasurer Stuart Gerson, Board Member Donald Ayer, Advisory Council Member Nuala O’Connor, and Charter Members John B. Bellinger III, Paul Rosenzweig, and Nicholas Rostow.

Read the full brief here. For press inquiries, please contact [email protected].

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