Defense Secretary Pete Hegseth is using the machinery of national security to destroy Anthropic because he dislikes the company’s ethical constraints. The D.C. Circuit’s debate this week over the Pentagon’s baseless “supply-chain risk” designation reveals an appellate judiciary prepared to invent new, impenetrable immunities for executive caprice. When Hegseth decides a company is a threat to the state, the judges are signaling that they will act as the Pentagon’s counsel rather than the branch charged with protecting the rule of law.
This is not a procurement dispute. It is the executive-aggrandizement regime catalogued in our Doctrines of Presidential Impunity Dossier in operation. The Pentagon’s case rests on the catastrophic-consequence bogeyman: the vague, unverified claim that Anthropic’s models contain embedded vulnerabilities foreign adversaries could exploit, and that a model failure during critical operations could produce irreversible damage. Justice Department attorney Sharon Swingle told the panel that the government’s position requires blanket appellate deference to executive judgment on military capability. The structural reality, the government argues, is that the executive holds primary authority over national defense, and the courts lack the operational knowledge to second-guess defensive risk assessments. The claim is a legal abstraction. The effect is administrative erasure.
Anthropic’s litigation filings lay out the administrative record with mechanical precision. Under congressional statute, the Department of Defense must follow specific procurement and risk-assessment procedures before isolating a private vendor. It did not. Anthropic’s lead counsel, Kelly Dunbar, demonstrated that the Secretary of Defense bypassed those congressionally mandated steps. The administration instead pointed to Anthropic’s documented refusal to embed Claude into fully autonomous weapons systems without human-oversight standards. Hegseth cited the company’s safety engineering as intentional sabotage. He converted a statutory safety-oversight process into a contract-dispute mechanism. The executive branch never produced technical documentation of the alleged vulnerabilities. It substituted policy disagreement with a private technology provider for documented operational risk. Judge Karen LeCraft Henderson saw the gap immediately. She found no evidentiary foundation for the designation. The transcript records her calling it a spectacular overreach. The government offered only broad assertions of threat. A judicial review of administrative action requires a record. There was none.
The opposing posture on the panel belongs to Judge Neomi Rao. Her questions mapped the coordinates of the regime. Rather than demanding evidentiary verification, she questioned the judicial capacity to second-guess the defense secretary’s predictive judgments on national security. The government framed the dispute around trust and embedded operational vulnerabilities that could damage military capabilities long-term. Rao’s line of inquiry indicated where the panel may land: inside a national-security black box that precludes Article III oversight entirely. Judge Gregory Katsas sat through the same transcript. The panel offered no ruling date. This is not judicial restraint. This is a doctrinal lock that prioritizes executive convenience over the evidentiary requirements of the Administrative Procedure Act. When a court refuses to demand proof for a designation that destroys the commercial prospects of a multibillion-dollar entity, it is not practicing restraint. It is facilitating—and legitimizing—the administrative punishment of disfavored voices.
The Pentagon has found a structural workaround for the failed transparency of the administrative state. By branding a company a security risk rather than pursuing standard contracting channels, the executive shields itself from the discovery process that would expose the retaliatory nature of its conduct. The Justice Department’s argument relies on speculative fear-mongering to foreclose constitutional scrutiny. A federal judge in San Francisco has already blocked the Pentagon from applying the designation, citing the same procedural void. The D.C. Circuit’s pending ruling will either stop the mechanism or legitimize it, continuing the appellate conflict that first appeared divided earlier. That choice is being made in real time. The previous judicial skepticism regarding Pentagon motives is being steadily replaced by architecture that treats a cabinet secretary’s assertion as a final, unchallengeable judgment.
If the panel grants the deference Rao’s questions imply, we will witness the solidification of a permanent override for constitutional procedure. National security becomes the excuse. Executive caprice becomes the rule. In this architecture, the judiciary is not a check on the Pentagon. It is its final, most compliant supervisor.