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Good Morning:
Yesterday on #DogShirtTV, the estimable Holly Berkley Fletcher brought on her high-school nemesis, the estimable Kenya Wolff, an expert in early childhood education and development. We talked childcare costs, Head Start, DEI, and—of course—the Toddler-In-Chief.
The Situation
In my “The Situation” column yesterday, I cataloged 100 days of menace and inanity:
Jan. 20—A proclamation granting pardons and commutations to all Jan. 6 insurrectionists and other criminals, including those convicted of seditious conspiracy and assaulting police officers.
Jan. 21—An executive order ordering a halt to all government DEI programs.
Jan. 22—The Trump administration threatensthat federal workers, the New York Times reports, would face “‘adverse consequences’ if they fail to report on colleagues who defy orders to purge diversity, equity and inclusion efforts from their agencies.”
Jan. 23—A federal judge in Seattle blocksPresident Trump’s executive order to end birthright citizenship.
Jan. 24—The State Department begins freezing most foreign aid, under an executive order from Jan. 20.
Yesterday On Lawfare
Compiled by the estimable Caroline Cornett
Secretary Hegseth Ends WPS Program Despite Joint Staff Support
Tyler McBrien reports on a recent Joint Staff memorandum showing widespread support for the Women, Peace, and Security program (WPS) among combatant commands in the United States military. McBrien highlights the inconsistency between the recommended course of action in the memorandum and Secretary of Defense Pete Hegseth’s claims about the program.
On April 15, two weeks before Hegseth’s social media post, Joint Staff Director Douglas A. Sims issued a memorandum addressed to the under secretary of defense for policy with the subject line, “Way Forward on Department of Defense Implementation of the Women, Peace, and Security Act 2017.” Based on input from the leaders of the combatant commands, Joint Staff submitted a recommendation to the office of the under secretary of defense for policy—and ultimately Secretary Hegseth himself—on the future of WPS implementation. The Joint Staff’s mission is to provide recommendations to the secretary of defense and ultimately support the decisions made by civilian leadership.
The Authoritarian Risks of AI Surveillance
Matthew Tokson explains how artificial intelligence (AI) law enforcement facilitates authoritarianism by concentrating power, increasing corruption, and deterring political protest. Tokson suggests ways that courts and lawmakers can use the Fourth Amendment to check growing AI surveillance in the U.S. and prevent AI-driven authoritarian drift.
The Fourth Amendment protects individuals’ privacy against unlawful government surveillance. But it can also be used to check authoritarianism in ways that go beyond privacy protection. Anti-authoritarian theories of the Fourth Amendment can lay the theoretical groundwork for a novel approach toward technologies like AI. Following the guidance of these theories, courts should analyze AI-based enforcement systems based on the assumption that such systems will be both pervasive and aggressively employed. The way to address these systems’ risks is proactively, before an unregulated, automated system capable of eroding democracy establishes a monopoly of force in a given jurisdiction.
Oral Argument Summary: CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd.
Nas Lawal and Matthew Salavitch summarize the oral arguments before the Supreme Court in CC/Devas (Mauritius) Ltd. v. Antrix Corp. Ltd., in which the Court considered whether foreign governments must have some connection to the U.S. before a U.S. court may exercise jurisdiction over them for the purposes of enforcing an arbitral award. Lawal and Salavitch break down the system of arbitration, award enforcement, and sovereign immunity that gave rise to the case and the ramifications its outcome could have for international arbitration.
The question presented to the Court has two prongs. The first is whether the FSIA itself imposes a minimum contacts requirement as a prerequisite to personal jurisdiction over foreign sovereigns. The second prong is whether, independent of the FSIA, the Fifth Amendment’s Due Process Clause imposes a minimum contacts requirement. As to the first prong, Devas points out that under the terms of the FSIA, in order to have personal jurisdiction over a foreign sovereign a plaintiff need only show (a) that an exception to sovereign immunity is met and (b) that the defendant has been served in accordance with the procedures set out in the statute. Beyond these requirements, they argue, nothing in the statute imposes a minimum contacts requirement.
Podcasts
On Lawfare Daily, Tanvi Madan joins Daniel Byman to discuss the April 22 terrorist attack in Kashmir, how the crisis has evolved, the escalation options available to India, and the limited influence of the U.S., China, and others to contain the crisis.
Today’s #BeastOfTheDay is a fledgling barn owl learning to fly:
In honor of today’s Beast, don’t be afraid to look stupid.
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