Holly Gets Glomared by the New York Times
They should have refused to confirm or deny that the word was real
Good Morning:
Thursday on #DogShirtTV, the estimable Carol Tsang came on the show to ask me to what extent Supreme Court precedent actually matters. A lecture ensued:
Friday on #DogShirtTV, the estimable Julia Curlee came on to discuss the destruction of US intelligence agencies:
Recently On Lawfare
Compiled by the estimable Sarah Willrich
A New Research Agenda for AI Constitutionalism
Kevin Frazier shares a research agenda for understanding the constitutions that govern artificial intelligence (AI) models. Frazier explains that the agenda’s goal is to develop these constitutions in a way that encourages public transparency, oversight, and dialogue that extends beyond the doors of the frontier AI labs.
So while constitutions are a potential vehicle for governance and public accountability, their efficacy in shaping model values also raises significant risks of constitutions being captured by biased actors or bent toward political interests. How best to transform constitutions into vehicles for more inclusive and meaningful public involvement in AI oversight is a complex, unresolved matter. A Working Group on AI Constitutionalism (temporary name) made up of a range of practitioners and scholars, including the author of this Lawfare piece, aims to take on that task.
Trafficking in Israel’s War Crimes in a Midtown Manhattan Synagogue
Gabor Rona considers the legal implications of events in the U.S. where land in the Israel-occupied West Bank is sold. He argues that promoting such sales constitutes abetting a war crime under international law and that those who participate open themselves up to criminal responsibility under U.S. federal law. Rona also discusses how the sales interact with housing discrimination law and the First Amendment.
There’s a direct link under the prohibitions of the Geneva Conventions and the U.S. War Crimes Act to these real estate promotions. Federal law establishes the same degree of criminal responsibility for those who aid and abet war crimes as it does for the principal perpetrators. Aiding and abetting liability applies to anyone who assists, facilitates, or encourages the commission of a war crime. While the individual prospective purchasers and perhaps even some officials at synagogues promoting these events may claim ignorance of the Israeli policies to acquire Palestinian territory, it is hard to imagine the same ignorance on the part of the real estate companies promoting these sales.
‘Defending Taiwan’ and the Limits of Military-Only Deterrence
Peter A. Dutton reviews Eyck Freymann’s book, “Defending Taiwan: A Strategy to Prevent War With China.” Dutton praises Freymann’s creative approach to deterring China by creating greater political and economic leverage, in addition to traditional military deterrence. He also, however, identifies questions Freymann left unanswered, such as whether implementation could happen quickly enough and whether his proposals could accelerate China’s plans for Taiwan.
In some ways, much of “Defending Taiwan” is a long wind-up to its presentation of the concept of avalanche decoupling, which is a plan to cause no more economic disruption on day one of a cross-strait crisis than necessary, but to accelerate international decoupling momentum over time. The idea is to target China’s vulnerable export manufacturing base to deter China from initiating a crisis or to isolate and punish it after the fact. Freymann believes the combination of international cooperation through the ESCB plus policies of avalanche decoupling would lead to the establishment of a new, postcrisis, American-led international trading system that respects all countries’ need to balance their vital national interests with the benefits of members’ market integration.
Courts for AI Constitutions
Nathan Darmon and Tom Reed propose court-like institutions developed by artificial intelligence (AI) companies to guide frontier models through complex decision-making. Darmon and Reed argue that an evolving set of precedential decisions would be preferable to a static constitutional document because it would create a richer training corpus for models, improve transparency and accountability to the public, and allow for a few careful decisions to guide the models’ actions at scale.
There’s a better way. Society has built an institution to solve these problems: courts. Courts apply open-ended rules, refine them over time, and clarify their meaning—all while providing coherence, adaptability, and greater transparency. The lesson for frontier labs is to build an internal court to shape how their models interpret ambiguous rules, and let its rulings build up into a kind of synthetic common law. A court-like mechanism is uniquely suited to the artificial intelligence (AI) context, far better than older attempts like Meta’s Oversight Board. Below, we provide a rough sketch for what this could look like.
Being a North Korean Hacker Is About to Be Less Fun
In the latest edition of the Seriously Risky Business cybersecurity newsletter, Tom Uren discusses North Korea tightening controls on its state-sanctioned hackers, cyberattacks on water facilities in several U.S. states, testing controls on frontier models, and more.
Given the recent hack of the country’s banks, and this news of DPRK operators getting cozy with criminal outfits, we suspect that RGB officials might start to look at RaaS operations a bit differently. If you’re personally on the hook for extreme punishments if your underlings go rogue, why put them in a position where they’re tempted to put their hands in the cookie jar?
So what’s next for North Korean state-sponsored hacks? Scaling back its ransomware operations is one possibility, but it is not the only option. We suspect a strong tightening of controls on its hacking teams in general is more likely.
Podcasts
On Lawfare Daily, Kate Klonick speaks with Steve Vladeck about his forthcoming Harvard Law Review Foreword, “The Court Against the Courts,” in which Vladeck argued that the Supreme Court failed to shield district judges from impeachment threats and harassment campaigns and that it bears “significant responsibility” for what’s happened to them.
On Rational Security, Scott Anderson sits down with Julia Curlee, Ariane Tabatabai, and Natalie Orpett to talk through the week’s big national security news stories, including the most recent updates in the U.S.-Iran war, the confirmation of Jay Clayton as Director of National Security, how the law firm Paul, Weiss has fared since capitulating to President Trump, and more.
On Scaling Laws, Kevin Frazier sits down with Daniel Kokotajlo to discuss Kokotajlo’s policy proposal to delay superintelligence, which Kokotajlo thinks is necessary to ensure that the disruptive effects of highly-capable AI systems do not outweigh the benefits.
Videos
On Friday, August 7, at 4 p.m. ET, I joined Molly Roberts, Eric Columbus, and Roger Parloff to discuss developments in the reflecting pool prosecution, the status of temporary protective status after the Supreme Court’s ruling, litigation over Trump’s executive order on mail-in voting, and more.
Today’s #BeastOfTheDay is the green heron, seen here being unexpectedly long:
In honor of today’s Beast, no, seriously, look at this x-ray of its neck:
Tell Me Something Interesting
There exists a language other than English in which the word for a domesticated canine is “dog.” This language is Mbabaram, an unfortunately now extinct indigenous Australian language.
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