I cannot confirm or deny that I ordered this monster and that it’s allegedly arriving tomorrow. I will say that if I did order it, I would have ordered it with a lot of lumens and a lot of wattage. Just saying.
I will also say that if I did order it, it will need a name. It is, for those who cannot tell by sight, not a laser but a gobo projector. And traditionally, we name gobo projectors after weapons systems. Suggestions are welcome in the comments.
Wednesday on #DogShirtTV, the estimable
came on the show (late) to discuss Russian incursions into NATO airspace. The Greek Chorus helped fill the time while we waited for Minna with a spirited discussion of the concept of blueberry soup ice cream.Thursday was Yom Kippur, so I fasted from #DogShirtTV.
Friday on #DogShirtTV, I struggled with lust,
actually praised a Russian, and had some thoughts on AI in schools.#YourMusicOfTheDay: Operation Brahms
Unusually estimable Robert E. Wittes, who is—among a bunch of other things—my father, writes in with a corrective to the snotty fashion in which I referred to people who refer to “lieder,” instead of “songs” when referring to 19th Century German music:
I believe your sneering reference to the use of the word “lieder” ignores the fact that the works traditionally termed “lieder” are songs in which the texts that are set to music are themselves serious works of literature. All cultures have had what we now term popular songs, but a 19th century German or Austrian would not have called these lieder. Viennese culture was very rich in popular music, sung by ordinary uneducated people. But the texts for “lieder” were written by Goethe, Heine, Schiller, and others who aspired to literary excellence.
Mein Vater is quite correct. Typically, lieder are not just any songs. They are typically settings of poems. The term is sometimes translated into English with the even-more-pretentious term “art song,” which is so terrible that sticking with the German is probably the least bad option.
Here’s something that is really not terrible: Brahms’s Piano Sonata, No. 3, Opus 5, and specifically, this performance of it by French pianist Hélène Grimaud back in 2003. The video won’t display here, but you can click through and watch it on YouTube. I promise the additional click is worth your time.
I have never paid attention to this piece before. This performance caused me rather to fall in love with it. It is still not fully mature Brahms, but I have listened to it several times since stumbling across this performance. It’s remarkably rich.
My Mom Gives a Podcast Interview!
Speaking of my parents, my mother—the very estimable Janet Wittes—gave a podcast interview! She is a statistician of considerable fame, but this is the first audio interview of which I am aware in which she tells the remarkable story of her career, which took her from the math department at Hunter College to running clinical trials for malaria treatments in Kenya and running the biostatistics group at the National Heart Lung and Blood Institute. I actually learned a few things from this conversation:
The Situation
In Wednesday’s “The Situation” column, I discuss the stakes of the current government shutdown, advising congressional Democrats not to relent until they achieve concessions on executive branch compliance with federal statutes.
But herein lies an important catch: You can’t play this game as a minority party in Congress unless you’re willing to stick with it and win. If you’re going back down in 24, 48, or 72 hours, throw in the towel now before a shutdown even starts. Nothing is weaker than setting up a fight and then flinching from it as soon as it starts—though for some reason, this point never sticks to a man who earned the nickname TACO and has made a signature move out of setting a deadline then blowing past it. But it will stick to congressional Democrats, life being unfair. Doing that is unfair to the men and women who will lose their jobs in the first several days of this shutdown. If you’re going to play this game, you have a moral obligation to win it.
And winning it, to be clear, does not just mean getting Medicaid funding. It means getting some real assurances Congress’s word means something and still commands respect.
The Situation yesterday returned to the subject of blowing up civilian boats in the Carribean Sea:
there is a word for killings outside of armed conflict for which there is no domestic legal authority. That word is murder.
A mob boss can declare a blood feud with a rival mob boss to be a “war,” but that doesn’t make the killings that take place under its auspices anything other than simple murder. Similarly, the Department of Defense can call itself the Department of War and declare that it is in an “armed conflict” with any number of Venezuelan gangs that are not, in fact, engaging in armed conflict against the United States, but that doesn’t make the pilots of alleged drug trafficking boats into “unlawful combatants.” And it doesn’t make targeting them with lethal force anything more elevated than murder.
When I say murder here, I am not speaking in hyperbole or using the term in some colloquial sense.
. . .
I simply cannot see how these strikes are not criminal acts under U.S. law.
Recently On Lawfare
Compiled by the estimable Isabel Arroyo.
Making a Scarecrow of the Law: A Former Agent’s Reaction to Recent Events at the FBI
Michael Feinberg argues that politicized hiring practices and political weaponization have degraded the integrity of the FBI. Feinberg reflects on former Director James Comey’s indictment, the dismissal of special agents who took a knee during George Floyd protests, and the path ahead for new agent trainees at Quantico.
We often think about the rule of law in overly intellectualized terms; we root discussions about the idea in concepts drawn from political theory and moral philosophy. But its erosion has a very real human cost, measured in fallen ideals and thwarted principles, and, ultimately, shattered lives. It pains me that agents like the ones fired this past week will inexorably suffer emotional and financial losses. Some measure of grace should be afforded to those who dedicate their lives to protecting their fellow citizens, but the leadership of the FBI seem intent on denying them even that. These people deserve better treatment, and they deserve better leadership. But then again, so does our country.
Hegseth’s Unusual, Partisan, and Dangerous Convening of Military Leaders
Kori Schake examines Secretary Pete Hegseth’s address to the military’s top brass—which included a proposal to “straighten out” U.S. cities and accusations of a “woke military”—and highlights the danger of politicizing the armed forces.
The military must now veer toward the political correctness of a different stripe being propagated by the Trump administration. This new political correctness forbids any mention of climate change affecting the geopolitical landscape and the value of diversity. And the military will follow through, because it is the Constitutional prerogative of the civilian leadership to set military policies. As Professor Heidi Urban said to me, “[T]he longest running war the United States military doesn’t want to fight is the American culture war.”
You Can’t Designate ‘Antifa.’ Banks and Platforms Will Act Like You Did Anyway.
Thomas Brzozowski analyzes the civil liberties dangers raised by President Trump’s executive order designating “Antifa” as a domestic terrorist organization. Brzozowski emphasizes that, while the designation is not likely to survive legal challenges, its announcement is an effective way to chill dissent among the American public.
But while courts can enjoin unlawful implementation, they cannot un-say the announcement. Nor can they, alone, restore public trust depleted by repeated executive actions that announce powers first and search for legal authority later. When presidents bypass Congress and statutory limits by proclamation rather than law, they teach the public to expect—and to demand—strongman solutions to complex problems. That is a self-reinforcing loop.
Reductions in Force During Shutdowns: Easier Said than Done
Nick Bednar provides an update to his Sept. 29 piece, detailing the potential legal issues raised by the Trump administration’s efforts to reduce the federal workforce during a government shutdown. Bednar analyzes challenges that might emerge under the Antideficiency Act, the Government Employee Fair Treatment Act, and prohibitions on unlawful impoundment.
The story becomes even more complicated once Congress passes and the president signs appropriations into law. RIFs would deprive agencies of employees they will need once appropriations resume. Because employees separated through a RIF enjoy reemployment rights, agencies would be required to give them priority for job openings. In practice, this means the administration would likely need to rehire many of the same employees to carry out congressionally funded programs. Refusing to do so—and leaving appropriated funds for salaries unused—could amount to unlawful impoundment. Again, these cases are fact-specific.
In short, RIFs are a poor policy tool for managing a shutdown: they are too complex, too permanent, and ill-suited for something as temporary as a lapse in appropriations.
Venezuelan Boat Attacks: Utterly Unprecedented and Patently Predictable
Gabor Rona argues that the Trump administration’s lethal strikes on alleged drug traffickers are legally indefensible, but that the rationale behind them is a predictable extension of legal justifications crafted during the war on terror.
That the recent strikes on boats off the coast of Venezuela are illegal under international law cannot be seriously disputed. But returning to more rational, effective, and legal responses to threats—perceived and real—requires an honest assessment of where the Trump administration’s purported legal rationale comes from. And that means confronting the reality that the rationale builds on a long history of U.S. legal positions unsupported by international law. The flawed elements of the United States’s post-9/11 legal arguments—in particular, the unprincipled expansion of definitions that restrict who is a lawful target for the use of force, and under what circumstances—laid the groundwork for the Trump administration to claim that the boats’ passengers could be targeted because they are “terrorists” and that the use of force is appropriate because drug smuggling is an imminent threat or because the United States is already at war.
Speech, Coercion, and the Myth of the Censorship Regime
Renee DiResta critiques the equivalency some legislators have drawn between the pressure FCC Chair Brendan Carr exerted on ABC to fire Jimmy Kimmel and the pressure the Biden administration exerted on Google to suppress Covid-19 misinformation. DiResta argues that Google’s confident and successful resistance to Biden administration outreach—versus ABC’s immediate acquiescence—reflects the difference in coercive power employed in each case.
The Biden administration did attempt to persuade tech platforms in its public criticism, and private communications—as prior administrations of both parties have done. Tech employees often report that congressional staffers call and yell, officials in the first Trump administration called and yelled, foreign governments call and yell—calling and yelling or sending mean emails is not surprising. The question is whether government officials exceed appropriate boundaries and use their regulatory or other power to coerce.
Google’s letter to Jordan provides evidence against the “censorship industrial complex” narrative he is using it to support. The company’s explicit statement that it “continued to develop and enforce its policies independently” despite government pressure during the Biden administration stands in stark contrast to ABC’s capitulation following Carr’s regulatory threats.
The CFIUS Review That Never Will Be
Vinita Singh analyzes the national security risks raised by selling video game studio Electronic Arts to a consortium that includes Saudi Arabia’s sovereign wealth fund. Singh argues that the involvement of Affinity Partners—an investment firm managed by Jared Kushner—in the consortium makes it unlikely the acquisition will be properly scrutinized by the Committee on Foreign Investment in the United States.
Looking beyond PIF’s stated goals, this acquisition should raise red flags regarding national security. Post-acquisition, it is likely PIF will have unchecked access to EA work product and strong influence over its activities and broader direction. One of the most significant features of the prospective transaction is that it would transform EA from a public company into a private company. In the United States, publicly traded companies must comply with arduous reporting requirements imposed by the Securities and Exchange Commission. These requirements oblige companies to engage in regular reporting regarding their activities, financial situation, and investor base. This reporting gives the public—and the government—insight into the activities of the firm and the relationship of the firm to its various investors. Private companies do not have the same reporting requirements. Thus, the acquisition is likely to transform EA into a black box. When this factor is coupled with what will likely be a material increase in PIF’s equity in the company, PIF will have much more direct and unchecked access to the company’s information assets and work product. Moreover, it will have greater influence over the way the company uses its capabilities and the direction in which those capabilities will be developed. This shift in PIF’s relationship with EA has the potential to harm U.S. interests and its broader national security posture in a number of ways.
The Open Markets Act’s Troubling New Provision
Alan Wehler and Jon Tran break down how Section 3 (a) of the Open Markets Act—which is designed to facilitate connections with third-party apps—could inadvertently compromise security for users and supply chains alike.
The provision appears to effectively prohibit covered app stores and mobile operating systems from taking any type of “punitive action” against apps that choose to use its permissive language to share user data with third-party apps or allow third-party apps to effectively operate within their own app. The provision would allow a third-party app to share user data with a third party without express user consent and would also allow a third-party app to operate on a user’s device without them having explicitly installed the app or given it permission or to install unvetted applications to a user’s device.
The Cyberespionage Gig Economy
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses how Russian hackers recruit European locals for cyberespionage, a spam service in New York state that seems to have concealed a foreign intelligence operation, and an oversight report from Senate Democrats criticizing the Department of Government Efficiency’s data-handling and governance practices.
Western intelligence agencies are control freaks, so for them it would be unthinkable to outsource functions as important as covert comms or cyber espionage. But some foreign intelligence agencies think differently. Chinese cyber espionage, for example, is routinely carried out by commercial enterprises. Their intelligence agencies are willing to forgo tight operational control in return for some level of plausible deniability and a lot more intelligence.
With that kind of approach to risk, why not outsource covert comms too? It appears at least one country is trying.
Podcasts
On Rational Security, Scott R. Anderson sits down with Alan Rozenshtein and Anna Bower to discuss California’s new law banning masking for law enforcement, the weaponization of the Justice Department, and California’s first-of-its-kind artificial intelligence (AI) safety law.
Scaling Laws presents a recording from a conference hosted by the Institute for Humane Studies, in which Kevin Frazier, Gus Hurwitz, and Neil Chilson discuss the challenges of defining “AI policy,” how academics can overcome silos and incentives that hamper AI research, and the merits of an interdisciplinary approach to AI law.
On Lawfare Daily, Molly Reynolds sits down with Nick Bednar and Sam Berger to discuss which government functions keep operating during a shutdown and why, the causes of government shutdowns, and how the Trump administration is using this shutdown to pursue novel cuts to the federal workforce.
Videos
On Lawfare Live, Anderson sits down with Joel Braunold to discuss President Trump’s proposed peace plan for Gaza, the international reaction to it, and what it means for the war in Gaza.
On Friday, I sat down with Loren Voss, Roger Parloff, and Eric Columbus to discuss Judge William G. Young’s ruling that the Trump administration unlawfully targeted noncitizens for pro-Palestinian views, immigration enforcement conditions on federal grants, litigation over the National Guard’s deployment in Portland, and a suit challenging expected reductions in force during the government shutdown.
Today’s #BeastOfTheDay is the elephant, seen here rescuing a drowning gazelle:
In honor of today’s Beast, be the elephant in the room next time someone around you needs help.
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