A Defining Joke For Our Times

Courtesy of Jonathan Rauch--and with an f-bomb

Good Evening:

I love ice storms.

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I was reminded yesterday over lunch of a joke told to me years ago by the estimable Jonathan Rauch. The joke came back to me because Rauch also told it to the former national security official with whom I lunched yesterday, and he told me the joke has been on his mind ever since, well, the late unpleasantness began.

I haven’t been able to get it out of my head since the lunch. The joke goes like this.

A guy goes to see his doctor, who examines him, runs some tests, and finally comes back and tells the man, “I have good news and bad news for you.” The doctor asks which he wants first.

The man tells the doctor to hit him with the bad news first, and the doctor says blankly: “You’ve got terminal cancer. There’s nothing I can do. You’ve got six months max. And it’s gonna be painful. You’re going to basically shrivel up and writhe in pain until you just die. It’s going to be horrible.”

The guy gasps, and asks: “So what’s the good news?”

The doctor takes him over to the office window and points to a window in a building across the street. He says, “You see that beautiful woman sitting behind that desk? The one with the great body and the long dark hair?”

The man responds that he does.

“I’m fucking her.”

The more I think about it, the more I think this is the defining joke of our time.

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Today on #DogShirtTV, the estimable Anastasiia Lapatina came by to rant about the current situation in the Arctic, except that she didn’t do much ranting, and the estimable Holly Berkley Fletcher joined us to rant about South Africa. Along the way, Nastya announced the launch of a new podcast series on US-Ukraine relations Lawfare will be releasing in a few weeks.

The cactus is now claiming to be from the Arctic.

Speaking of that podcast series Nastya mentioned on the show today, on Feb. 24, at 10 a.m. ET, the Brookings Center on the United States and Europe and Lawfare will hold a discussion on the war in Ukraine, looking at the path of U.S. and European relations with Ukraine before and during the conflict as well as what lies ahead in 2025 and beyond. The discussion will feature Brookings experts as well as the co-hosts of Lawfare and Goat Rodeo’s new limited series narrative podcast Escalation which chronicles the surreal twists and turns between the United States and Ukraine through the lens of the journalists, diplomats, spies, and ambassadors who crafted the relationship between the two countries. This event will be open to attend in person or watch online. Register for the livestream here.

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Today On Lawfare

A Step in the Right Direction for Prepublication Review

Jack Goldsmith and Oona Hathaway highlight the Office of the Director of National Intelligence’s recent clarification that former government employees who once held top secret/sensitive compartmented information security clearances do not need to submit materials “not reasonably deemed to contain or be derived from covered intelligence” for prepublication review:

This clarification appears to shift the reference point for submission from the impossible-to-know information set of a hypothetical fully informed person to what a “reasonable” intelligence officer would believe. As the clarification explains, “reasonableness should be judged by what a clearance-holder with access to relevant information, knowledgeable about intelligence activities and classification of information, might reasonably deem to contain or be derived from covered intelligence.” A lot of work here is being done by the term “reasonableness,” but the clarification seems to mean the clearance-holder who believes the publication contains no classified information need not submit for preclearance review unless that person “also believes an informed intelligence professional might reasonably conclude otherwise, the person should submit the material for prepublication review.”

Court in a Storm: Israel, the ICC, and the Trump Administration

David Bosco argues that the United States should use the threat of sanctions as leverage to push for reforms to the International Criminal Court, which suffers from an overly broad jurisdiction and a low success rate in prosecuting cases:

With the threat of broad sanctions in the background, the United States should pressure ICC member states to adopt either an implementing agreement or some other code of conduct that prioritizes certain investigations over others and emphasizes situations where there is a reasonable prospect for success. As Todd Buchwald has argued, there are several Rome Statute provisions that could be interpreted to narrow the court’s aperture, including the concept of “gravity,” the court’s complementary provisions, and its interpretation of head-of-state immunity.

TikTok v. Garland Opens the Door to Global Censorship

Anupam Chander, G.S. Hans, and Edward Lee criticize the Supreme Court’s reasoning in TikTok v. Garland that Congress’s data security concerns were sufficient to waive scrutiny of a content-based rationale, warning that the decision risks setting a dangerous legal precedent that national security can supersede the right to free speech:

Yet the Court imagined the “counterfactual” that Congress did not have this content-based reason—stopping speech manipulated by China through the algorithm to spread its message—in enacting the law. With that hand-waving, the Court concluded “Congress would have passed the challenged provisions based on the data collection justification alone.” Under the Court’s logic, in this so-called mixed justification case, Congress’s purportedly legitimate (non-speech) basis in data security immunized Congress’s speech discriminatory rationale from any constitutional scrutiny. That is, by relying on the supposed “valid” rationale supporting the law, the Court wholly ignored the fact that the law targeted speech that Congress did not like.

How Far Will Campaign Finance Deregulation Go?

In a review of Ann Southworth’s “Big Money Unleashed: The Campaign to Deregulate Election Spending,” Robert Boatright examines Southworth’s account of the legal strategies critical to the evolution of the campaign finance system and evaluates her claim that public participation is crucial to regulation proponents’ success moving forward:

The challenge Southworth poses in the concluding chapter harks back to the historical story she has told in the first half—one of the crucial components of the legal strategy she has described is the training of potential judges and the development of language that these judges can use. As a result, the Supreme Court will be receptive to deregulatory arguments for decades to come. This fact not only has shaped the language of litigants on both sides but also suggests that the justices control the agenda more than ever. They are players, not umpires. Contribution limits, disclosure requirements, and long-standing prohibitions on political activism by judges are all on the table now despite the fact that even deregulation advocates accepted these regulations a decade or two ago.

Podcasts

Holly Berkley Fletcher joins Daniel Byman to discuss the complex and tragic war and humanitarian crisis in Sudan and her recent Lawfare article “The Sudan War and the Limits of American Power.” They talk about the role of regional powers in the conflict and the challenges faced by the international community in addressing the ongoing violence.

Videos

On Feb. 7 at 5 p.m. ET, I will speak to Anna Bower and Roger Parloff about various lawsuits targeting President Donald Trump’s executive actions, including DOGE’s recent actions, the deferred resignation program, and the attempt to fire FBI agents and employees:

Documents

Quinta Jurecic shares 14 memos from Attorney General Pam Bondi to Department of Justice employees on topics including internal personnel matters, potentially widespread investigations into current and former civil servants, and immigration enforcement.

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Today’s #BeastOfTheDay is a spider slamming the door in the face of an intruder:

Video Source

In honor of today’s Beast, remember that you have rights under the Fourth Amendment. If the cops come to your door, you can slam the door and tell them to come back with a warrant.

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Yesterday, we noted that the CDC had been unable—because of Trumpist interference—to release its ordinary Morbidity and Mortality Weekly Report for the last three weeks. We expressed the hope that the MMWR would come out as usual today, and would include critical bird flu updates which should have been in the previous weeks’ unreleased issues.