Good Morning:
The estimable Michael Feinberg is very serious about animatronic Halloween decorations.
Yesterday on #DogShirtTV, the estimable
’s quest for Jimmy Kimmel jokes continues, so I invited the estimable Noam Dworman, owner of a New York comedy club, to discuss:Yesterday On Lawfare
Compiled by the estimable Isabel Arroyo.
Next Up: Letitia James
Molly Roberts examines the Trump administration’s looming mortgage fraud case against New York Attorney General Letitia James, spotlighting several unorthodox features of the investigation and the overall deficiency of the likely charges.
But let’s assume for a moment that prosecutors have James dead to rights on one or more of these charges. Even then, this is not the kind of mortgage fraud case federal prosecutors normally bring. U.S. attorneys offices typically prosecute mortgage fraud cases to nab big-time swindlers attempting to trick banks into six- to eight-figure losses. If Letitia James had committed mortgage fraud, her efforts would have yielded her only thousands of dollars—tens of thousands at most.
The only world in which James’s activities would merit this level of attention is the political one.
The Geography of a U.S.-China War
Henrik Stålhane Hiim and Øystein Tunsiø warn analysts who compare U.S.-China tensions to the Cold War not to underestimate the potential for “hot” war over Taiwan. The authors argue that maritime geography and other factors render hostilities with China—including nuclear hostilities—significantly more likely than they were with the Soviet Union.
The geography of maritime East Asia facilitates reaching tacit bargains about limits to a war. Taiwan is an integral territorial unit, and both sides may believe they could limit the conflict to the island and the skies and waters surrounding it. To be sure, both China and the United States would have to make difficult trade-offs when fighting a war. The United States would have to consider whether attacks against targets on the Chinese mainland would trigger escalation, and Chinese leaders would have to consider whether U.S. bases in Japan and elsewhere in the region—as well as the U.S. territory of Guam—are off limits or not. Nevertheless, there is no reason for a conflict to automatically escalate to the broader region.
If a limited conventional war were to break out in East Asia, limited nuclear use is more likely than it was in Cold War Europe. The threshold for going nuclear is still likely to be very high—not least because of the risk of further escalation—but it is more probable in a conflict over Taiwan than it was in Cold War Europe.
Europe’s Data Broker Problem Threatens U.S. National Security
Justin Sherman breaks down how European data brokers jeopardize both European security and American personnel in Europe. Sherman explores why European governments have historically paid less attention to data aggregation by brokers than by other digital actors and outlines how European governments might look to U.S. law to curb data broker abuses.
The sale of Europeans’ data on the commercial market creates risks that nation-states intending to do harm can buy and acquire data to profile European government personnel, learn more about the European defense industrial base, and otherwise advance cyber, information, intelligence, and other operations against the continent. But this activity also has implications for the United States. European-headquartered or -operating data brokers could collect data on U.S. government personnel, such as military service members and diplomats, when they’re stationed abroad in Europe and sell it; indeed, there are already indications this may be happening. There could also be front companies in Europe doing so under the cover of the wider data broker market.
Oregon v. Trump: A Hearing Diary
Roger Parloff live-blogged Friday’s Oregon v. Trump district court hearing, where plaintiffs secured a temporary restraining order blocking 200 Oregon National Guard troops from being federalized over the governor’s objection.
Though there are several issues, the focus will be on whether the deployment is authorized under 10 USC 12406. Govt is citing the 2d & 3d clauses: “threat of rebellion” & inability “to execute the laws of the US” with “regular forces.”
Emergency Hearing on Sending California and Texas National Guard to Oregon
Anna Bower live-blogged Sunday’s hearing in Oregon v. Trump, after which Judge Karin Immergut again blocked the deployment of federalized troops to Oregon.
A quick TL;DR for those who haven’t been following along over the past few hours. Yesterday, a Trump-appointed judge blocked the president’s call-up of Oregon’s National Guard. Trump tried to circumvent that ruling by sending already-federalized California national guard troops to Portland.
Oregon then filed a motion for a second restraining order, and the state of California joined Oregon’s suit. Additionally, the government filed a notice of appeal to the 9th Circuit with respect to the first injunction issued by Immergut.
Abrego Garcia v. Noem: A Hearing Diary, Oct. 6
Parloff live-blogged today’s status conference in the habeas case of Kilmar Abrego Garcia, where Judge Paula Xinis gave the government until Wednesday to file evidence on steps it has taken to secure Abrego’s removal to Eswatini.
The goals of Abrego’s habeas petition are multifold. Ultimately he wants release from custody. If he must be removed, he’s “designated” Costa Rica. Says he can’t be removed to Uganda or Eswatini without govt 1st trying the designated country. (Govt has offered him CR only if he pleads guilty.) /4
He’s already won certain other requests in his habeas: Judge Xinis has ordered that he not be removed from continental US during the case & that he be housed < 200 mi from Greenbelt, MD. He’s actually further away right now in Moshannon (PA), but crim attys, in NY & Nashville, not complaining. /5
Podcasts
On Lawfare Daily, I sit down with Parloff, Loren Voss, and Eric Columbus to discuss a hearing in the litigation over National Guard deployment in Portland, Oregon, states challenging the imposition of immigration conditions on federal grants, and federal unions challenging expected firings during the government shutdown.
The Lied Debate Continues and #YourMusicOfTheDay: Operation Brahms
The estimable
weighed in the comments on yesterday’s post:Of course your father is correct! It’s worth noting, too, that there are two words in German that are translated as “song”: Lied and Gesang. While we’re at it, French also contains two words commonly used for song: chanson and mélodie; as a generic designation, the latter is roughly equivalent to the German “Lied.”
You’re incorrect, alas, about “art song” as an “even-more-pretentious term” than “Lied.” I’ll provide a post later today on my own Substack about the term in which I lay out the historical and aesthetic reasons for it.
I am unable to respond to Wattenbarger’s defense of the word “art song” seeing as how he—like the Supreme Court of the United States—offered an interim ruling with no reasoning. I will await his explication of the word before attempting a rebuttal.
Speaking of gesängs, #YourMusicOfTheDay today is the 6 Gesänge, Op. 7, gesung here by the very estimable baritone Dietrich Fischer-Dieskau. The playlist has them a bit out of order, which is annoying, but I’m sure you’re technically savvy enough to listen to them in the order Brahms meant you to hear them.
This is a genuinely lovely group of songs, a great introduction to Brahms songs for people who have never spent time with them before. Each is short. Each has a gorgeous melody. The last song—number 6—is actually one of his earliest work, written in 1851 but not published until later. The poems he has set are available here in both English and German.
Today’s #BeastOfTheDay is the butterfly, seen here riding a tortoise:
In honor of today’s Beast, take the slow but scenic route.
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