Why Not Attend Your Own Funeral?

So many reasons

Good Morning:

There are a number of answers to this challenging question, posed by the Washington Post headline writers, but we need to start by challenging the premise. Most of us will, in fact, attend our own funerals. In fact, for most of us, our presence there will be one of the defining features of the event—-which is to say, if you aren’t at your funeral, it will be someone else’s funeral.

There are exceptions to this rule. You might be one of those people whose body is incinerated in a plane crash over the ocean, for example, and you therefore you get a funeral in absentia. You also might be one of those people who is quietly disposed of by your family and then later honored in a “memorial service.”

But note that a “memorial service” is not a funeral; it even has a different name. And your family will probably not call it a funeral—at least if they don’t read the Washington Post.

So the first point here is that you’ll be there.

Now, let’s try to interpret the question as the headline writer might have intended us to: Why not attend your own funeral while conscious and able to enjoy it?

Answer: Because then you’d not be dead and it wouldn’t be a funeral.

Perhaps the defining feature of your funeral—other than you being in attendance—is that you will not be alive.

And perhaps the defining feature of your not being alive is that you will not be able to participate actively.

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Yesterday on #DogShirtTV, the estimable Minna Ålander did not stand me up! Small victories, people.

Anyway, I asked Minna to imagine what she’d do if she were Putin, and we talked NATO, Ukraine, Svalbard, and more:

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The Situation

In yesterday’s “The Situation” column, I highlight the Trump administration's repeated refusal to comply with court orders regarding the release of Kilmar Abrego-Garcia. I discuss the challenges facing U.S. District Judge Paula Xinis and how she can respond to the government’s display of lawlessness:

Ultimately, the ambition here is to home in on a very specific set of question: Who was the decisionmaker or the decisionmakers? And what precisely did that person or group of people decide in response to Judge Xinis’s original order, in response to the Supreme Court’s decision, and in response to Judge Xinis’s various orders in its wake?

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Today On Lawfare

Compiled by the estimable Caroline Cornett

Process as Punishment: An American History of Political Spectacle

Renee DiResta explores the parallels between the House Un-American Activities Committee’s (HUAC) “institutionalized persecution” and how some members of Congress use bad-faith investigation to target and blacklist political enemies. DiResta reflects on her own experience in one such investigation and offers lessons institutions under attack can learn from HUAC’s eventual defeat.

HUAC is often conflated with McCarthyism, but the two were distinct. McCarthy’s anti-communist crusade burned bright and flamed out quickly (1950-1954), undone by his own egregious overreach. HUAC, by contrast, was institutionalized persecution. It operated for more than 30 years (1938-1975), investigating labor unions, Hollywood, academia, and even local community groups. Perhaps more important, HUAC’s power didn’t come from its own enforcement but from what it cowed others into doing. Afraid of attracting its attention, employers, universities, and entire industries blacklisted colleagues, fired employees, and policed speech. What HUAC began, institutions finished.

Can the President Appoint Principal Officers without the Senate?

Anne Joseph O'Connell examines whether the president has authority under Article II to remove inferior officers and to name temporary officials outside the Vacancies Act without congressional approval. O’Connell argues that accepting these authorities renders the Appointments Clause effectively void:

In short, in Justice Robert Jackson’s Youngstown framework, the White House claims we are in the “zone of twilight” because the Vacancies Act does not apply to the IAF and ADF boards. (Aviel and Brehm argue that the Vacancies Act puts us in the third category, where the president’s “power is at its lowest ebb.”). But there is a statute governing the selection of the board of directors of each entity, which comports with the Appointments Clause. If the president can avoid the nomination and confirmation process in this way, he will be avoiding his constitutional mandate to nominate officers for positions “established by Law,” and he will be intruding on Congress’s constitutional powers, including the Senate’s confirmation power.

Should American Spies Steal Commercial Secrets?

Stewart Baker considers whether the United States should reverse policies prohibiting commercial and technological spying given China’s long standing practice of economic espionage. Baker evaluates arguments for and against commercial espionage and offers suggestions for a U.S. approach to collecting and distributing intelligence:

Breaking the taboo against commercial intelligence may still be worth trying, but with care. The question “Who gets the intel?” must be answered in a way that is fair and resistant to favoritism, that ensures an active and demanding customer, and that doesn’t cheapen the sacrifices made by intelligence professionals.

The UAE’s Trump-Era AI Strategy

In the latest installment of Lawfare’s Foreign Policy Essay series, Georgia Adamson argues that—because of the potential for China to gain backdoor access to critical technologies—the U.S. must exercise caution in considering whether to alter Biden-era export controls to supply the United Arab Emirates with artificial intelligence (AI) chips:

Considering the UAE’s ties to China, the Trump administration should think carefully before making any promises to upgrade the UAE’s categorization in the AI diffusion rule if it chooses to keep the policy. If it does, one alternative could be to lay out specific safety and security requirements that the UAE can take to move up country classification groups. This would use more chips as a carrot for the UAE to decouple from China and use U.S. technology responsibly.

Podcasts

On Lawfare Daily, I spoke to Bob Bauer, Anna Bower, Quinta Jurecic, Roger Parloff, and James Pearce about the status of the civil litigation against President Donald Trump’s executive actions, including the Supreme Court’s rulings in the Alien Enemies Act case and in the firing of probationary employees case:

In the season finale of Escalation, Anastasiia Lapatina and Yulia Tymoshenko recount Russia's full-scale invasion of Ukraine in February 2022. They discuss President Joe Biden and Congress’s attempt to send weapons and the tensions that leave the U.S.-Ukraine relationship in jeopardy:

Videos

On April 15 at 6 p.m. ET, Bower and Parloff will join me to discuss the case of Kilmar Abrego Garcia following a 4 p.m. hearing on whether the Trump administration is complying with the Supreme Court's ruling that the administration facilitate his release from an El Salvador prison:

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Today’s #BeastOfTheDay is the cockatoo, seen here engaged in felonious theft:

Video Source

In honor of today’s Beast, steal something and eat it.

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Reading The Comments

Generations of wisdom handed down from our internet ancestors teaches us that reading the comments can only do you harm. Yet, as the fingernails return to the mosquito bite, so I (EJ Wittes) return yet again to the comment section.

Where else, after all, could I find wisdom such as this?

Or such accurate scientific observations?