Good Morning:
The Line outside of the U.S. District Court in Alexandria for press seats at the James Comey arraignment.
Yesterday on #DogShirtTV, the estimable
brought on the estimable Alan Elrod of the Pulaski Institute to tell us about what the Trump regime looks like from Arkansas. I looked like a cult leader about to perform a sacrifice because my hotel room in Aspen CO doesn’t have a desk lamp:The Situation
In yesterday’s “The Situation” column, I ask questions about life, the future of the U.S. government, and the viability of a constitutional republic led by leaders without shame.
Here’s one that’s been bothering me for a few weeks now: Would the United States be blowing up civilian boats in the Caribbean Sea in frank violation of federal murder laws had the Supreme Court not declared the President of the United States to be absolutely immune from criminal prosecution for official acts like ordering military actions?
Why do the words “Vaseline” and “baseline” not rhyme?
Why does the Supreme Court consider it an irreparable injury if the government is temporarily blocked from enforcing a questionable interpretation of a law but not consider it an irreparable injury if the enforcement of that law while its legality gets adjudicated causes someone to be deported to a repressive country or causes some institution to go belly-up for lack of funds or causes an entire federal agency to be dismantled?
What does the word “irreparable” actually mean?
Does democracy actually die in darkness?
Yesterday On Lawfare
Compiled by the estimable Isabel Arroyo.
The Practical Role of ‘Test and Evaluation’ in Military AI
Robert Callahan analyzes the challenge of training military artificial intelligence (AI) systems to follow the laws of armed conflict (LOAC), and proposes a three-part “test and evaluation” framework for training LOAC-compliant AI tools.
How do you test an AI system for its adherence to proportionality? The answer cannot be found in a simple accuracy score. Instead, T&E must evolve to benchmark the reasoning behind the full AI system. This involves creating simulated scenarios where the system is presented with multiple tactical problems and evaluating its recommended solutions. Imagine, for example, a generative AI system recommending a course of action to strike a high-value command-and-control node located in a building. A human commander must assess if the strike is proportional. A properly benchmarked AI would have been tested on its ability to generate alternative options—such as using a smaller munition, a different angle of attack, or a nonkinetic method—that could achieve a similar military effect while significantly reducing the risk to a nearby school or medical clinic. Does the system consistently favor options that achieve the military objective with the least collateral damage? Can it correctly identify when the expected incidental harm would be excessive in relation to the military advantage and, therefore, recommend against a strike?
The Comey Indictment and Selective or Vindictive Prosecution
Ema Rose Schumer details the exacting evidentiary standards that defendants—including former FBI Director James Comey and Salvadoran immigrant Kilmar Abrego Garcia—must meet to have their case dismissed for vindictive or selective prosecution.
Notably, the Armstrong court underscored the broad discretion afforded to prosecutors and imposed a high evidentiary burden on defendants. Concerned that allowing unfounded or speculative claims could impose heavy burdens on the executive branch and chill legitimate law enforcement efforts, the Court required defendants to present “clear evidence” of both discriminatory effect and purpose before obtaining discovery. The central paradox of this rule is that defendants are required to prove the prosecution’s intent, which is often inaccessible without discovery, before discovery is granted, leading some legal scholars to characterize the rule as a “Catch-22” dilemma. Indeed, selective prosecution motions, in practice, have proven largely illusory; defendants have prevailed in approximately three dozen cases over the past 50 years.
Podcasts
On Lawfare Daily, Tyler McBrien sits down with Philippe Sands, author of “38 Londres Street,” to discuss the intertwined stories of Chilean dictator Augusto Pinochet and Nazi SS Commander Walther Rauff, how the legal battle over Pinochet’s extradition changed international criminal law, and how writing a book on Pinochet informed Sands’s thinking on the U.S. Supreme Court’s immunity ruling in Trump v. United States.
On Scaling Laws, Ravi Iyer and David Sullivan join Kevin Frazier to unpack the similarities and differences between social media and AI companions, the importance of regulating with the end user in mind, and current policy proposals.
Today’s #BeastOfTheDay is once again the capybara, seen here eating a salad and being part of a salad:
In honor of today’s Beast, take a moment to appreciate how much the capybara contributes to the cute internet video economy. People are always praising the internet famous dogs and cats, but come on. The capybara is doing more than its fair share with absolutely no recognition.
Tell Me Something Interesting
Today’s #BeastOfTheDay is not this gargoyle, which despite being a Beast of distinction, is ineligible on account of being made of stone:
However, despite not being eligible to be today’s Beast, this gargoyle is notable for giving me (
) the opportunity to share one of my all time favorite pieces of useless but entertaining pedantry:The above image depicts a gargoyle. You can tell that it is a gargoyle because it has water coming out of its mouth. If it did not have an open mouth that functioned to drain water, it would not be a gargoyle. It is in fact the definitional feature of a gargoyle that it, as the OED puts it, “project[s] from the gutter of a building (esp. in Gothic architecture), in order to carry the rainwater clear of the walls.” An ugly stone carving on the outer wall of a building that does not function as a downspout is not a gargoyle; it is merely a grotesque.
Why do I find this entertaining? Because the word “gargoyle” derives from the Old French word for throat, and is etymologically related to the word “gargle.” (The exact nature of the relationship is disputed; “gargle” may or may not derive directly from “gargoyle” but they certainly share a root.) In other words, the word “gargoyle” is basically an onomatopoeia of the sound that the water makes as it flows through the pipe and out of the mouth of the carving. Gargoyles are like Pokemon: they say their name over and over.
In honor of the gargoyle, reflect that the next time you gargle with mouthwash, you too will become, for a moment, a gargoyle in spirit. Embrace your inner ugly little man. Perch on a parapet and leer at passersby.
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