Good Morning:
Okay, Algorithm: It’s one thing to try to sell me castles or exoskeletons or even Eastern European teenagers. But what the fuck is this? Look, I know I’m not exactly the normal social media user, whatever that may be. But I don’t think I have ever run a search remotely suggesting that this stream of content would interest me.
Monday on #DogShirtTV, the estimable Holly Berkley Fletcher and I discussed a karaoke retirement party. Also, Zambia:
Tuesday on #DogShirtTV, the estimable Jimmy Rushton came on the show to remember his friend, a GCF battery recipient, who was killed recently in a Russian missile strike:
Yesterday on #DogShirtTV, the estimable Alicia Wanless came on the show to represent the Canadian perspective as the US-Canada trade war escalates:
Jimmy Rushton’s appearance on the show on Tuesday (see above) raises an important set of questions for the Greek Chorus Foundation, which is currently raising funds for Operation Taya and Operation Battery. Should we take on some type of support for the family of Slava Kurbanov, the soldier about whom Jimmy spoke—to whom the Foundation gave a battery earlier this year and who was recently killed in a Russian strike? Slava leaves a family with no other means of support. His daughter is also in the third trimester of pregnancy with twins. The family is not eligible for death benefits until DNA tests come back establishing his death, and that may take a while, as the strike in question left the scene devastated.
The facts are these: Slava was a friend of Jimmy’s to whose unit the Greek Chorus Foundation gave a battery earlier this year as a gesture of thanks to Jimmy for his tireless efforts in helping us schlepp batteries around Kyiv. He was also, as the obituary linked to above details, a prominent amateur tennis player. He leaves behind a dependent spouse, parent, and teenage child—along with two adult children. His oldest daughter, Marta, is having twins in a few weeks.
In our discussion on Tuesday, a few ideas came up for how the Greek Chorus Foundation might help the family. I put them here to the group:
Some Greek Chorus members suggested we should do something separate for the babies, perhaps in the form of a subscription to a diaper service or something along those lines.
One important question is how to balance any third project against the Foundation’s existing commitments—some of which are fixed and unyielding and some of which are more flexible. In the fixed department, for example, is Taya’s next tuition payment, which is due on Oct. 31. In the more flexible department is, for example, batteries; we can buy more of them, or we can buy fewer of them. We also have some flexibility on when we send Taya cash for living expenses at graduate school. So prioritization matters:
I will come up with an action plan once I have guidance from the governing committee—i.e. the response to these polls.
Recently On Lawfare
Compiled by the estimable Sarah Willrich
Palestinian Islamic Jihad and the Gaza Ceasefire
In the latest edition of Lawfare’s Foreign Policy Essay series, Erik Skare explains the unique position of the Palestinian Islamic Jihad (PIJ) in negotiations between the U.S. and Hamas. Skare argues that the proposed peace deal, which would require all fighters in Gaza to put down their arms, gives the group a choice: set aside previous ideological commitments and continue its opposition through the electoral system or seek to take Hamas’s place as the face of armed Palestinian resistance.
So while PIJ could declare without any associated costs in its 2018 political document that “to disengage from the armed struggle is … a defiance of religion, to give up the homeland, and to betray the charters, covenants, and the values upon which societies, states, homelands, and nations are built,” it cannot afford today to be framed as a spoiler. The PIJ leader with whom I corresponded made it clear that PIJ does not aspire to obstruct the negotiations, just that it objected to the absence of Israeli obligations and guarantees. “PIJ has stressed the necessity that any agreement include mutual obligations, so that every step the resistance commits to is met with an equivalent and binding step on the enemy’s side,” he said. “Every clause obligating the factions must be matched by a clear clause obligating the occupation.”
Shutdown Reform’s Constitutional Blind Spot: The Two-Year Clause
Matthew B. Lawrence, Mark Nevitt, and Amelia Powell highlight an easily missed concern with a proposed bill to prevent government shutdowns by funding the government automatically: it could violate the Constitution’s requirement that the army be funded for only two years at a time. The authors explain that though this is not the first time such automatic funding proposals have been considered, intervening court decisions have made their unconstitutionality even more apparent than when first proposed.
Observers including Rebecca Ingber and Harold Koch have described Congress’s appropriations power—the power of each chamber (House and Senate) to unilaterally deny the president necessary annual or supplemental funding for military campaigns—as one of its key remaining tools when it comes to foreign affairs. Even recently, Congress has refused to pass military appropriations in an effort to influence President Trump’s military actions in Iran.
Well-intentioned though it may be, the appropriation created by the Prevent Government Shutdowns Act could fund agency functions through 2027, 2037, or 2276. It creates the possibility of a permanently funded standing army and, thereby, gives away a key remaining tool of popular influence on national warmaking. For that reason, the Constitution forbids it.
OLC’s Dangerous, and Wrong, Opinion About the Posse Comitatus Act
Chris Mirasola breaks down the Department of Justice Office of Legal Counsel’s new legal opinion that states military personnel can arrest individuals after they leave a national defense area. Mirasola argues the opinion ignores recent precedent on the Posse Comitatus Act, misinterpreting the requirements for off-base arrests and what constitutes an acceptable military purpose.
In a sign of things to come, the OLC cites none of these cases in its present analysis. Neither does reference, at all, to OLC’s long-standing practice of applying all three tests to proposed military activity. And it does not cite, again unlike in the first Trump administration, Laird v. Tatum, the most recent Supreme Court case to consider the PCA in significant detail. Instead, if relies on a 1978 memo that predates much of this case law to stand for the proposition that the PCA only “precludes ‘military personnel [from] applying force to the civilian community in the normal course of civil government’ and prevents ‘actual or threatened coercion by persons subject to military discipline on behalf of civil law enforcement officers.’” This, of course, creates the illusion that the relevant legal standard is far less onerous than it actually is.
Can the Midterms Be ‘Stolen’ On Jan. 3? It’s Complicated.
Molly Roberts unpacks speculation about the “rogue clerk” scenario ahead of the midterms, wherein a House of Representatives clerk could manipulate which newly elected members could vote for speaker, who could then refuse to swear in members of the opposing party. Roberts argues that courts likely could intervene before such a scheme could take place—since the clerk’s roll-making duty is a ministerial one enforceable by mandamus—but the scenario still has the potential to sow chaos and is worth taking seriously.
Nonetheless, while a hypothetical rogue clerk may find it difficult to singlehandedly overturn the democratic order, he still has plenty of opportunity to create chaos. Whether or not judicial intervention ultimately arrived in any dispute, the members-elect of the party from whom the majority was being improperly wrested would surely object to an incorrect roll. At that point, considering multiple claimants for contested seats would presumably show up to work on Jan. 3, the proto-House of Representatives would have to vote on who should be allowed to vote for speaker. This would likely result in a vote on who should be allowed to vote on who should be allowed to vote for speaker, and so on—with the chamber descending into a parliamentary vortex.
The Federal Trade Commission After Trump v. Slaughter
J.B. Branch argues that the Slaughter decision, which made it easier for the president to remove appointed officials, incentivizes Federal Trade Commission (FTC) commissioners to align more closely with the president. Branch highlights artificial intelligence (AI) regulation as an area where that shift in incentives is likely to prove consequential. For example, he points to the FTC’s proposed AI Policy Statement, which can be interpreted to preempt state AI laws, aligning with the administration’s broader AI policy and expanding executive power.
Those judgments will inevitably require substantial policymaking discretion. As Slaughter strengthens presidential influence over the commission, future FTCs may become more willing to interpret Section 5 expansively, align enforcement priorities with broader presidential initiatives, advance nationally uniform approaches to technology regulation, and test the boundaries of federal authority in areas where Congress has spoken only in general terms. They may also increasingly assert positions that reshape the relationship between federal and state regulation, particularly where the White House views divergent state approaches as obstacles to White House priorities—especially national economic priorities.
The Censorship Machine: Silencing the National Security Workforce
Julia Curlee analyzes why so many purged national security officials choose to remain silent about their treatment. Curlee explains that the Trump administration has leverage to punish dissent in the government, private sector, and civil society, resulting in a system of self-censorship where former officials would rather stay quiet than risk their livelihoods.
The silence is now being put in writing. National security employees have always signed nondisclosure agreements covering classified information; in May, the administration proposed the first governmentwide agreement, covering nearly everything any federal employee learns on the job—down to “pre-decisional or deliberative material”—with obligations that do not end with federal service. Under a companion suitability rule, refusing to sign is grounds for removal—and debarment from federal employment for up to three years.
The arithmetic is not hard. The protections are gone, appeal forums are clogged, and the first to speak out will be the first fired.
Replacement Through Knowledge Acquisition
William Dinneen and Ben Vagle warn about the rapid development of replacement through knowledge acquisition (RKA), the process of artificial intelligence (AI) models extracting data from companies that use them, allowing AI providers to directly compete with those companies. Dinneen and Vagle explain that the legal remedies to RKA all have limitations, and suggest an approach that maintains optionality to respond as RKA’s impact becomes clearer.
The industries most vulnerable to RKA are those in which information shared with AI providers directly implicates the industries’ products or services—for instance, software or legal. In such industries, AI usage data from customers could most plausibly be employed to develop competing products or services. For example, employees of an enterprise software company might use AI models to write code or analyze data, disclosing critical information about enterprise software to AI labs. Similarly, in the legal industry, lawyers might employ AI models to execute legal workflows, revealing proprietary legal strategies. And in the financial services industry, AI models might reveal sensitive information about investment strategies. Moreover, if many employees within the same enterprise are using the same AI models simultaneously, the available information, once linked and synthesized, could reveal much more about the enterprise than any single employee has access to.
Podcasts
On Monday’s Lawfare Daily, I sit down with Anna Bower, Molly Roberts, and Eric Columbus to discuss Chief Justice John Roberts’s stay of the injunction preventing the construction of the White House ballroom, updates in the prosecution of Don Lemon, two courts of appeal ruling against acting U.S. attorneys, developments in the Kennedy Center litigation, and more.
On Tuesday’s Lawfare Daily, Daniel Byman sits down with Andrew Yeo to talk about Trump’s decision to engage in talks with North Korea’s leader while curtailing military exercises with South Korea.
On Scaling Laws, Anil Seth joins Kevin Frazier to examine whether AI could ever be conscious. Drawing on Seth’s recent essay, they attempted to define consciousness, develop arguments for and against machine consciousness, assess what the current evidence can and cannot tell us, and what it all means for policymakers and users.
On Wednesday’s Lawfare Daily, Curlee and Michael Feinberg join me to discuss Curlee’s new article on the incentives that encourage former intelligence community members to stay quiet when they are purged from the government.
Today’s #BeastOfTheDay is the black vulture, seen here preening a caracara hawk. Why? Why not.
In honor of today’s Beast, do some social grooming.
