# Can a Contract Freeze the Law on Autonomous Weapons?
Jeremy Howard and Luke Versweyveld
2026-03-02

- By Jeremy Howard and Luke Versweyveld, co-founders of [Virgil
  Law](https://tryvirgil.com/). Jeremy is the Founding CEO of
  [Answer.AI](http://Answer.AI) and inventor of the first LLM. Luke is
  the CEO of Virgil, and an expert on contract law.

## Background

OpenAI recently published [Our agreement with the Department of
War](https://openai.com/index/our-agreement-with-the-department-of-war/),
in which they included this important contractual language (emphasis
ours):

> The Department of War may use the AI System **for all lawful purposes,
> consistent with applicable law**, operational requirements, and
> well-established safety and oversight protocols. The AI System will
> not be used to independently direct autonomous weapons in any case
> where law, regulation, or Department policy requires human control,
> nor will it be used to assume other high-stakes decisions that require
> approval by a human decisionmaker under the same authorities. Per DoD
> Directive 3000.09 (dtd 25 January 2023), any use of AI in autonomous
> and semi-autonomous systems must undergo rigorous verification,
> validation, and testing to ensure they perform as intended in
> realistic environments before deployment.

In addition, they included this “FAQ”:

> What if the government just changes the law or existing DoW policies?
>
> Our contract explicitly references the surveillance and autonomous
> weapons laws and policies as they exist today, so that even if those
> laws or policies change in the future, use of our systems must still
> remain aligned with the current standards reflected in the agreement.

In an “AMA” (Ask Me Anything) on [x.com](http://x.com), OpenAI CEO Sam
Altman was [asked about
this](https://x.com/deredleritt3r/status/2027901932115796341) by user
@deredleritt3r:

> …could you please clarify which provision in the agreement with the
> DoW “expressly references the laws and policies AS THEY EXIST TODAY”

Katrina Mulligan, Head of National Security Partnerships, OpenAI for
Government, responded with the above text of the contract, and
@deredleritt3r followed up:

> This language contains references to “applicable law”. Does the DoW
> interpret this as “the law applicable at the time the contract is
> signed”, as opposed to “the law applicable at the time the relevant
> action is undertaken”?

To which Katrina Mulligan responded:

> we intended it to mean “the law applicable at the time the contract is
> signed”.

<img src="2026-03-02-oai-post.png" class="border" width="600" />

In this article, we will explain why, based on the contract language
shared by OpenAI, this understanding is incorrect. The contract language
will be interpreted under US law to refer to the law applicable at any
future time where a contract issue arises. This is a critical point,
because without this protection, it is ***not** the case that* “if those
laws or policies change in the future, use of our systems must still
remain aligned with the current standards reflected in the agreement”.

As we shall see, multiple independent legal doctrines, spanning 150
years of Supreme Court precedent and the foundational treatise on
contract law, confirm that “lawful purposes” is inherently ambulatory:
it refers to the law as it exists at the time of *performance*, not at
*signing*. It appears that OpenAI may have entered into a contract that
does not have the protections they believed it did.

## Analysis of language

We will step through the paragraph clause by clause and provide
annotations:

> The Department of War may use the AI System for all lawful purposes,

As we’ll see, this is the key section. It is clear that “all” lawful
purposes are permitted under the contract.

> consistent with applicable law, operational requirements, and
> well-established safety and oversight protocols.

“consistent with applicable law” is just restating the previous “lawful
purposes” language. “Operational requirements” simply refers to whatever
operations the department requires. “well-established safety and
oversight protocols” is the fuzziest part of this sentence, since there
are no such established safety and oversight protocols at present. It
would be a challenging case to make a claim that the US military did not
have the ability to set such safety and oversight protocols. So in
practice, “may use the AI System for all lawful purposes” is the plain
practical meaning of this sentence.

> The AI System will not be used to independently direct autonomous
> weapons in any case where law, regulation, or Department policy
> requires human control,

This section must be read as a whole, since it contains a constraint
(“will not be used to independently direct autonomous weapons”) followed
by a carve-out (“in any case where law, regulation, or Department policy
requires human control”). Due to the carve out, the first half of the
sentence does not add a significant constraint, since the carve-out
re-states the “may use the AI System for all lawful purposes”
permission.

> nor will it be used to assume other high-stakes decisions that require
> approval by a human decisionmaker under the same authorities.

This has the same constraint-then-carveout structure as the first part
of the sentence, and the result is the same. “under the same
authorities” refers to the “lawful purposes” outlined earlier.

The result of this sentence is not to add a significant constraint to
the “may use the AI System for all lawful purposes” language.

> Per DoD Directive 3000.09 (dtd 25 January 2023), any use of AI in
> autonomous and semi-autonomous systems must undergo rigorous
> verification, validation, and testing to ensure they perform as
> intended in realistic environments before deployment.

This is simply a statement of fact. It is describing the current DoD
directive. It is not using any language to incorporate this directive
into the contract itself, and is not creating any additional contractual
obligations on either party. If the DoD directives change, then the
permitted “lawful purposes” changes too. This is not merely a logical
inference but a well-established legal doctrine, as we will see below.

In addition, the current directive is already a carve out to the
constraint “AI System will not be used to independently direct
autonomous weapons”; it already allows for them to be used if they
“perform as intended”.

## The meaning of “lawful purposes”

In the light of this analysis, let’s now look at OpenAI’s statement “Our
contract explicitly references the surveillance and autonomous weapons
laws and policies as they exist today, so that even if those laws or
policies change in the future, use of our systems must still remain
aligned with the current standards reflected in the agreement.”

The first part is true. As we’ve seen the contract “explicitly
references the surveillance and autonomous weapons laws and policies as
they exist today” by citing DoD Directive 3000.09.

However, the second is not true, based on the language OpenAI chose to
share: “so that even if those laws or policies change in the future, use
of our systems must still remain aligned with the current standards”.
Specifically, the way in which the explicit reference occurs is purely
as a statement of fact, and does not incorporate the language or
introduce any contractual commitments. Ms Mulligan’s intention for the
contract to refer to “the law applicable at the time the contract is
signed” has not been successfully captured by the contract language
shared.

We will now review the term “lawful purposes”, to understand why, and
how, it refers to the law as it exists at the time of *performance*, not
at *signing*.

### Supervening illegality

The Restatement (Second) of Contracts, the seminal treatise on American
contract law, directly addresses this question. The commentary to
Section 264 (“Prevention by Governmental Regulation or Order”) states:
“it is a basic assumption of a contract that the law will not directly
intervene to make performance impracticable when it is due.” It
explicitly frames lawfulness as assessed at the time of *performance*,
not *signing*.

The Supreme Court affirmed this principle in *Louisville & N. R. Co. v.
Mottley*, 219 U.S. 467 (1911). This case was about an action in 1871,
when the L&N Railroad gave the Mottleys free lifetime passes as
settlement for injuries. In 1906, Congress passed the Hepburn Act (an
amendment to the Interstate Commerce Act) prohibiting railroads from
issuing free passes. The railroad stopped honoring the passes. The
Mottleys sued for specific performance, arguing the 1906 Act didn’t
apply to pre-existing contracts. SCOTUS ruled against them: the
subsequent federal legislation rendered the contract unenforceable.

In that case, Justice Harlan wrote for the Court that a contract cannot
be enforced against a party “even though valid when made” if subsequent
legislation has made it illegal. The Court reasoned that if the
principle were otherwise, “individuals and corporations could, by
contracts between themselves, in anticipation of legislation, render of
no avail the exercise by Congress, to the full extent authorized by the
Constitution, of its power to regulate commerce. No power of Congress
can be thus restricted.”

This closely parallels the current discussion: OpenAI gave the DoW an AI
system “for all lawful purposes.” If Congress later legislates on
autonomous weapons, OpenAI cannot argue the contract locks in
pre-legislation standards, just as the Mottleys could not argue their
1871 contract was immune from the 1906 Hepburn Act.

This doctrine is not contested. As Justice Harlan noted, the authorities
“are numerous and are all one way.” It follows directly that “all lawful
purposes” cannot be read as a static reference to the law at the time of
signing. The concept of supervening illegality requires that lawfulness
be assessed at the time of performance.

### The government cannot contract away its legislative power

The supervening illegality doctrine applies to all contracts. But there
is an additional, even more fundamental problem with OpenAI’s
interpretation: one of the contracting parties is the United States
government itself.

If OpenAI’s reading were correct, that the contract locks in the law as
it existed at signing, it would effectively constrain Congress’s future
legislative authority over AI and autonomous weapons. The Department of
War, as the government’s primary AI customer, would be unlikely to
support legislation contradicting its own contract, creating a de facto
freeze on legislative action. This is precisely the kind of outcome the
Supreme Court has rejected for over a century.

Most directly on point is United States v. Winstar Corp., 518 U.S. 839
(1996). During the savings and loan crisis, federal regulators
encouraged healthy thrifts to acquire failing ones, contractually
promising favorable accounting treatment. Congress then passed FIRREA
(1989), eliminating that treatment and rendering the merged thrifts
insolvent. The thrifts’ contracts contained a clause requiring
compliance “in all material respects with all applicable statutes,
regulations, orders of, and restrictions imposed by the United States”;
language strikingly similar to OpenAI’s “consistent with applicable
law.” The Supreme Court held 7-2 that this clause simply required the
thrifts to obey future laws as they arose; it did not freeze the
regulatory framework at the time of signing. The Court further held that
the government retains its legislative sovereignty even when it
contracts. Subsequent legislation applies regardless, and the only
question is whether the government owes damages for the change, not
whether the old law survives. The parallel to the OpenAI-DoW contract is
direct: “consistent with applicable law” refers to whatever the law is
when the contract is performed, not when it was signed.

In *Stone v. Mississippi*, 101 U.S. 814 (1879), the Court unanimously
held that a state cannot contract away its police power (i.e its
authority to regulate for the public welfare). Mississippi had granted a
lottery charter in 1867, then prohibited lotteries by constitutional
amendment in 1868. The lottery company argued the charter was a
protected contract. The Court disagreed: the power to regulate for
public welfare is inalienable and cannot be surrendered through
contract.

The same principle was established two years earlier in *Boston Beer
Co. v. Massachusetts*, 97 U.S. 25 (1877), where a corporate charter
granting the right to manufacture malt liquors was held superseded by
subsequent state regulation. And in *Home Building & Loan Assn v.
Blaisdell*, 290 U.S. 398 (1934), the Court held that the Contracts
Clause of the Constitution is not absolute, and must be balanced against
the state’s police power when serving the public welfare.

Most recently, in *Sveen v. Melin*, 584 U.S. 129 (2018), the Court held
8-1 that a state could retroactively apply a new statute to pre-existing
contracts without violating the Contracts Clause, reaffirming that
contracts exist within a living legal framework, not a frozen one.

These cases span 140 years and remain good law. The government, whether
state or federal, simply cannot bind itself by contract to refrain from
future legislation.

### The absence of a freezing clause

If OpenAI intended to lock in the law at the time of signing, they could
have done so with explicit contractual language, rather than relying on
the definition of “lawful.” Contracts of this nature get specific so as
to avoid scope ambiguity.

There is a mechanism for doing so: a “freezing clause” (also called a
“stabilization clause”). These are specialized contractual provisions,
found primarily in international investment agreements, that explicitly
state that only the laws in effect at the date of signing shall govern
the agreement for its term. The existence of freezing clauses as a
distinct, specialized drafting mechanism is itself powerful evidence
that the default position is ambulatory. If “applicable law” and “lawful
purposes” already meant “the law at the time of signing,” freezing
clauses would be unnecessary. They exist precisely because, without
them, contractual references to law are understood to refer to the law
as it exists at the time of performance.

The contract language OpenAI chose to share contains no such clause,
although it’s possible that for some reason they did include it but
chose not to share it (which would be surprising, since presumably they
chose to share the language that best supports their arguments in the
article).

Such clauses are rare enough in government procurement that experts we
spoke to were unaware of ever seeing one. Indeed in *Winstar* the
justices made it very clear that such clauses should be assumed to not
be valid. Justice Scalia’s concurrence (joined by Kennedy and Thomas)
stated that: “Governments do not ordinarily agree to curtail their
sovereign or legislative powers, and contracts must be interpreted in a
common sense way against that background understanding.” Justice
Souter’s plurality opinion stated that a contract “to adjust the risk of
subsequent legislative change does not strip the Government of its
legislative sovereignty.”

Even if OpenAI’s contract contained an explicit freezing clause, it is
far from clear that such a clause would be enforceable against the US
government. The Federal Circuit has held that the sovereign acts
doctrine — the principle that the government cannot be held liable for
the impact of its public and general acts on its own contracts — is
“inherent in every government contract” (Conner Bros Construction Co. v.
Geren, 550 F.3d 1368 (Fed. Cir. 2008), applying Winstar). A clause
purporting to freeze the law would directly contradict this inherent
term.

Therefore, it seems a reasonable to conclude that the phrase “all lawful
purposes” refers to whatever the law permits at the time the contract is
performed.

## Quotes from other experts

A number of national security legal experts have come to the same
conclusion – that the language of the OpenAI contract that has been
shared does not appear to constrain the government or provide meaningful
contractual red lines. E.g:

- [Charlie
  Bullock](https://x.com/CharlieBul58993/status/2028157898371613066),
  Senior Research Fellow at LawAI: “What the contract language we do
  have says is, essentially: DOW gets to use OpenAI’s AI system for all
  lawful purposes. The end. The only real contractual restriction on
  DOW’s ability to use OpenAI’s systems other than ‘DOW has to follow
  the law’ is ‘DOW has to follow Department policy.’ But DOW can, of
  course, change its own policies whenever it wants.”
- [Alan
  Rozenshtein](https://x.com/ARozenshtein/status/2027784994102378744),
  Associate Professor at University of Minnesota Law School, Research
  Director and Senior Editor at Lawfare, former DOJ attorney: “I’m still
  trying to figure out what terms OAI agreed to, but I increasingly
  think they were not substantive restrictions on what DoD could do. So
  not sure it was much of a compromise.”
- [Brad Carson](https://x.com/bradrcarson/status/2028154204649398523),
  former General Counsel of the Army, former Undersecretary of the Army,
  and former Undersecretary of Defense: “\[this\] interpretation is the
  right one, IMO”, referring to this statement from OpenAI employee [Leo
  Gao](https://x.com/nabla_theta/status/2028048714368250308): “the
  contract snippet from the openai dow blog post is so obviously
  just”all lawful use” followed by a bunch of stuff that is not really
  operative except as window dressing.”

*Many thanks to Brad Carson for his thoughtful feedback during the
drafting of this article.*