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- [00:03]
Scott R. Anderson
Acast powers the world's best podcasts.
- [00:06]
Alan Rosenstein
Here's a show that we recommend.
- [00:11]
Quinta Jurassic
We're reconsidering everything right now. What is time post Covid? What is truth in Trump's America? Is yous've Got Mail Secretly? A movie about a creepy, gaslighting stalker? We can't answer the first two questions, but we have opinions about the third. We on Hot and Bothered are revisiting romance movies of the past and asking, what were these movies teaching us? What did we not even realize they were teaching us? Hot and Bothered is me, Vanessa Zoltan, a pop culture critic and nice lady with opinions, and Hannah McGregor, a bonafide professor of media studies, loving love stories and also just a little bit concerned. Come listen to Hot and Bothered.
- [00:57]
Scott R. Anderson
Acast helps creators launch, grow, and monetize their podcasts everywhere.
- [01:02]
Shane Harris
Acast dot.
- [01:07]
Benjamin Wittes
All right, so if we're really doing this properly, we have to have both Shane and Scott say hello and welcome to Rational Security, either at the same time or it's in succession, because these are. Other than Sophia playing Astor Piazzola, this is the iconic sound of Rational Security.
- [01:28]
Shane Harris
It's true.
- [01:29]
Scott R. Anderson
It's true.
- [01:29]
Shane Harris
What do you think, Scott? Should we do it at the same time, like we're jumping off a bridge together?
- [01:33]
Scott R. Anderson
I'll go high, you go low. We'll do a barbershop quartet style and see if we can hit perfect harmony on first bat. Hello?
- [01:40]
Shane Harris
Sure, sure, sure, sure. Let's try that. Let's see how it works.
- [01:43]
Scott R. Anderson
All right, let's try it. All right.
- [01:44]
Shane Harris
Three. Hello.
- [01:44]
Scott R. Anderson
Hello. One.
- [01:47]
Shane Harris
Okay.
- [01:47]
Scott R. Anderson
Hello.
- [01:49]
Shane Harris
Hello.
- [01:50]
Scott R. Anderson
Nothing. Hello. Wait. You. Who's counting down? This is failing. This is not as well as I expected this to go. We are two Rational Security, co host shy of a barbershop quartet, which is a shame. We got Alan on board. We're, like, almost there.
- [02:04]
Benjamin Wittes
I will count down.
- [02:06]
Scott R. Anderson
Count us down.
- [02:06]
Shane Harris
Ben, we're going to actually try and sing it. Okay.
- [02:09]
Benjamin Wittes
Three, two, one, go.
- [02:14]
Shane Harris
Hello.
- [02:16]
Scott R. Anderson
That's not bad. I feel like we have some harmony in there. No, no, no bites. No bites. Okay, that's fine. That's fine. We'll just stick to podcasting foreign. And welcome back for a very special episode of Rational Security, the podcast where we invite you to join members of the lawfare team as we try to figure out the week's big national security headlines. This is a very special episode of Rational Security. This is not only the year of the 15th anniversary of law Fair. Speed. Pardon me? The week of the 15th anniversary of year of Law Fair. It's the Year, all year round. This is also the year of the 10th anniversary of Rational Security and the week, give or take a week, of the fourth anniversary of Rat Stack 2.0 and the first anniversary of Rat Stack 2.1 or wherever I was abandoned by Alan and Quinta. And so I am thrilled to reach back into the archives because one of the great privileges of hosting this podcast is that I get to set the agenda every week and talk about the things I want to talk about that happened in the news. But I know when I give up this vaunted chair, I will miss that privilege. And so I've invited a few old friends back to on the podcast to help us flesh out our agenda and talk about a few things we haven't been talking about or haven't been talking about enough here on Rational Security over the past months or years since they were hosts or co hosts of the podcast. And to help me in the first of what's going to be two shifts of co hosts, because that's just how scheduling goes these days are two of the 1.0 cast, the crew members, host emeritus Shane Harris from the Atlantic. Shane, thank you so much for joining us.
- [03:51]
Shane Harris
Hi. Hello.
- [03:52]
Scott R. Anderson
And of course, co host emeritus Benjamin Wittes, editor in chief of Lawfare. Ben, thank you for joining us.
- [03:57]
Benjamin Wittes
And I do just want to point out that only the male co hosts were invited from Rational Security 1.0.
- [04:06]
Scott R. Anderson
If there was ever a doubt about that, 100%. This is straight gender discrimination. That's right. I'm glad we could get that out there. I'm glad we could clear the air up front.
- [04:15]
Benjamin Wittes
You know, there are two words, two women co hosts of Rational Security 1.0. But we just excluded them. Total erasure.
- [04:26]
Shane Harris
That is not true. They were unavailable.
- [04:29]
Scott R. Anderson
Just so we're clear, it's been some tricky scheduling. Everyone is very busy in their post Rational Security lives. But we're excited to have you guys back on to talk about a couple of issues that have been percolating in the back of your brains that we need to spend some time talking about. And Shane, I want to turn it over to you to get us started with your first topic, which I think is a really interesting one that we definitely should be talking about this week in particular.
- [04:50]
Shane Harris
Yeah, and it's great to be back. So, Scott, you'd asked about things that maybe hadn't been discussed on the podcast enough. In fairness, this is only an event that's really happened within the past week, so there wouldn't have been time to discuss it. But I wanted to Take a little bit of time to talk about the assassination or the murder of Charlie Kirk. A question of how you even use the words kind of, which is going to go to what I. Which word we should use kind of goes to what I want to talk about. I've spent the past several days since that event happened trying to understand it from so many different vantage points and try to make sense of it, as I think a lot of people have. But something that I keep coming back to and as more information emerges about the alleged shooter in this case, I think this is the right instinct, is a couple of years ago, folks remember I did a long series of reports and ultimately a documentary film with Frontline about a guy named Jack Teixeira, who is the so called Discord leaker. This is the young Air National Guardman in Massachusetts who had stolen from his workplace. He worked in a skiff at a base there in Massachusetts. Just a pretty stunning number of classified documents which he then uploaded into Discord and shared with his friends. And people will remember that they kind of got out into the wild and there was this really significant leak of national security information. I ended up spending the better part of a year with a lot of people who knew Jack Teschirra from their Discord server, almost all of whom were teenagers or very young adults, almost exclusively young men. And as I was watching this picture emerge of Tyler Robinson, this, you know, the suspect in Charlie Kirk's killing, I started seeing a very familiar profile in what we know about him from reports that he spent a heck of a lot of time online, was sending messages, it looks like possibly the day of or even the day after the killing in Discord and what appeared to be meant to many people, the strange messages that he allegedly etched onto bullet casings that were used in this crime, which I will say were not terribly strange to me, not because I am some great Internet linguist here, but I immediately recognized that as memes, as references and signals that this person was very likely chronically online, which was a lot like the kids that I spent time with when we were making the Discord project, who truly seemed to make not only no distinction between their in real life world and the online world, but actually I think tended to be more satisfied and more wedded to and fulfilled by the online life. And I think that what's being missed here in this conversation about what happened in Utah is that I don't think that this is a story that's going to be explained by partisanship or by politics. I think that describing somebody as Radical left. And that's explaining why he did this, I think really is going to come up empty, and people are going to be frustrated by that. I think, rather, we need to be thinking about this event in terms of somebody who was suffused in a community that is. And this is very hard for people to grasp. And it was for me to do at the time, too, where irony is actually like the lingua franca of these people, where everything is about subtext and not text, where you can read the shooting of Charlie Kirk almost as a kind of act of performance rather than strictly an act of political violence. Which is not to say that there may not be political motivations that ultimately come to fore here, but I actually think that if you're not paying attention and putting this sort of, you know, the chronically online lens over this, that you're gonna miss something really important about what happened here. And that has profound implications for law enforcement, for security agencies, for understanding how to prevent this kind of violence in the future. The person I saw who I think kind of best summed it up, actually, is my colleague Charlie Warzel at the Atlantic, who wrote a terrific essay which I would commend to everyone last week. And I just want to read a section of it because I think he gets as close to this as anybody I've seen where he writes this dynamic. A young shooter who seems to have no barriers between fringe online life and the real world has become an alarming meme unto itself. Just last week, I wrote about the mass shooting at the Annunciation Catholic Church in Minneapolis. The shooter there was also extremely online and apparently affiliated with a number of groups that defy normal political ideologies. These groups are better thought of as fandoms and a hybrid threat network of disaffected people that can include Columbine obsessives, neo Nazis, child groomers, and trolls. They perform for one another through acts of violence and cheer their community on to commit murder. Though these groups might adopt far right aesthetics, the truth is that their ideology is defined by a selfish kind of nihilism. To them, murder is the ultimate act of trolling, and they want to be remembered for it. That will sound crazy and impossible, I think, to a lot of people who aren't steeped in this stuff. And it would have to me before I spent a year hanging out with teenagers who think like this. And I want to emphasize there are not people who committed any acts of political violence. But, you know, one of the things that I struggle with trying to understand in Jack Teixeira's case is why would this obviously very smart person who knew that he was breaking the law when he did what he did, why would he do this and put himself at such enormous risk and his friends as well. And it really came down to wanting to be seen as a brave person, wanting to impress his friends, almost committing a troll, I think of his own in some ways. And I just don't think that our current political system, much less our discourse, is equipped understanding these really kind of foreign motivations. But if you talk to any person under the age of 25 about this, who spends a lot of time in discord, I think that they would look at what I'm saying and say, yeah, right, they would understand this. This is just, you know, a group of people who are nihilistic, ironic, and who don't think the way that we think they are thinking. And I think that if we continue persisting in trying to force this into a discussion about politics and radical ideology, it's going to fail and it's going to come empty.
- [11:34]
Scott R. Anderson
I think this is such an interesting way to frame this. And I had similar thoughts over the last week. Not because of the Texera case, which you know so well and is like wonderful context to bring in. I kept thinking back to Thomas Matthew Crooks, the similar young man who attempted to assassinate Donald Trump in Butler, Pennsylvania last year, did kill one person, injured several others in the shooting, was ultimately killed himself. This is an individual whose motives we still don't know, but was wrapped up in similar online communities and subcultures. Remember, he was closely followed a very kind of aggressive fan base around firearms channels on YouTube that had assorted discorded channels and conversation communities online. And similarly, is this complete sphinx ideologically, we don't know where he comes from. Republican household, like Charlie Kirk's suspected killer from a conservative household, maybe has signs that maybe lean to somewhat more leftist politics, but where does that land ultimately conflicting signals in a bunch of different degrees. And there is this instinct people have that because the target is a political figure, we want to put them on this political spectrum and force them onto left or right. We sometimes do that with school shootings or with church shootings, but it's not quite the same. It's not so clearly politically motivated because not everyone, I think, perceives those as politicized targets. And when we dig into what actually causes those, it tends to be a combination of social isolation, weird ideology, and then genuine mental illness to various degrees. And the fact that we so quickly let those be eclipsed by potential and Very loosely supported political motivations so early strikes me as dangerous. And it's feeding into narratives that people want to be true because it confirms their pre existing ideas about why people do these things and what the appropriate response is. Ben, what are your thoughts on this? Do you think this is maybe going a little too far or is there tapping into something that's a real problem here?
- [13:35]
Benjamin Wittes
Well, I agree that first of all, as a general matter, the search for motive in the search for political motivation in political assassination is often a fruitless one. I mean, most famously, the guy who shot Ronald Reagan did it to impress Jody Foster because he couldn't distinguish reality from the movie Taxi Driver. What's the political valence of that? Exactly. And by the way, the politician character in Taxi Driver had no particular ideology. He was just a politician who the leading lady happened to be working for. And so I think there's actually some, a lot of what Shane is describing is, you know, older than the Internet culture. If you think about the Reagan assassination attempt, the guy got wrapped up in the Internet culture of his day, which was a Martin Scorsese movie.
- [14:46]
Shane Harris
Right.
- [14:47]
Benjamin Wittes
And so deep in it that he couldn't distinguish between himself and, you know, Robert De Niro and then couldn't distinguish between Jodie Foster and the character Jodie Foster. And, and you know, I think there's something very similar that is going on with Teixeira. You know, he's so in his world, impressing his people in his world. Now, I don't know that there's serious mental illness going on there, but he's elevating that quasi fictitious world or at least role playing world over the reality that he could spend 25 years in prison for what he's doing, which he's now going to do. I do think we all want, when somebody is killed or somebody's targeted who we identify with politically, we all want his political enemies or her political enemies to be responsible for it. And so we have a way of saying, well, they've said, used violent rhetoric about Democrats and now look, Paul Pelosi is being targeted. Or they've used called Trump a threat to democracy. And now Trump is being targeted. And there is of course an element of truth to that that, you know, you make somebody like Charlie Kirk super controversial. And by the way, nobody did more to make Charlie Kirk super controversial than Charlie Kirk. And people will focus on him in their interest in violence. And that's, you know, one of the dangers of being in the public domain, by the way. It's not limited to the Political figures, You know, John Lennon was assassinated too. Right. But the, the direct line between I identify with Donald Trump or Steve Scalise or Nancy Pelosi or, you know, the Pulse nightclub, and therefore whoever attacks it must be who I would imagine my political enemies to be is wrong much more often than it's right. Because most people don't say, well, here is my ideology. And therefore when I pick up a gun and kill people, it's going to be the ideological opponents of my ideology because murder just isn't that rational. And so, yeah, I think we've. There's a lot of irresponsible rhetoric that's gone on. And more fundamentally, and that's true of Charlie Kirk, but more fundamentally, going back to Teixeira and, and saying what is the right way to think about these people, Internet culture is often a better guide to it. And what certain communities on Discord or on, you know, TikTok or whatever are talking about is often a bit going to be a better guide to it than, you know, what you would think from reading the political rhetoric on Twitter or Blue Sky.
- [18:17]
Scott R. Anderson
Well, I think that tees up kind of an interesting question here. You know, Ben's right. There are predecessor incidents to this shooting, to other shootings where we see a lot of similarities. Political assassination is nothing new. We are entering a period where there is certainly increased political violence, but certainly the level of high, low profile assassinations is still not what it was in the 1960s, kind of the heyday of that as an act that was occurring on a regular basis. Hopefully we won't get there, but who knows? But it's been, We've seen similar patterns and spikes in it in the past. Is there something that jumps out at you about this more recent pattern, these more recent figures and this online element of it or some other factor that makes this modern iteration of it different or more intense or more pose different or perhaps greater risks than the trends we saw contributing to it in the past.
- [19:09]
Shane Harris
Yeah, I think it's such a good question because of course our minds want to reach back for comparable examples to try and understand what's happening now. And I think a big difference between what happened in the 60s and 70s with that kind of political violence is it was genuinely political. Those were people with stated political motivations in many cases who were trying to achieve certain outcomes. And in the case of just taking the Charlie Kirk shooting, there's no manifesto so far. Maybe this will become clearer in charging documents to come this week. There's no obvious sort of buildup or outcome that Tyler Robinson allegedly is trying to achieve by killing Charlie Kirk. And I would argue that even if there's. Is, even if it does come out that he says, you know, some to somebody, I just hate what he's been saying about trans people or gay people or liberals or whatever. And I was going to put a stop to it. I still don't think that fully accounts for the way that being in this Internet culture may have distorted his understanding, frankly, about just the difference between right and wrong, and may have been a huge part of the motivation here. You know, there's another person who I've just kind of stumbled on today is a scholar, a meme researcher and Internet historian named Aiden Walker, who did a long post on TikTok explaining, you know, his take on this and what he was proposing. And it will seem perhaps very provocative to a lot of people, but I don't think it is, is that you can almost read Tyler Robinson's shooting as a shitpost, as a way of saying, look at me, watch me, I'm powerful. One of the memes that he used, it's not even really a meme, but they were these arrows that were etched on one of the bullets, allegedly, which it seems like law enforcement personnel may have initially misunderstood as some kind of transgender reference, which led to erroneous reporting about how trans ideology, quote unquote, was etched on these bullets. It's a reference to a maneuver in a game called Helldivers 2, which summons a giant bomb on your enemies as you're playing the game, which itself has been adapted into a meme in online conversations as a way of saying, you know, I'm putting a stop to this conversation now. Like, final point, it's going to finish you. And in a way, you could, I mean, I suppose, maybe read that as Tyler Robinson adopting that as a message that he has for Charlie Kirk. Right. But the point is that there are these references to this kind of ironic, allusional. Everything by reference, everything is subtext conversation. And I think that that may be what Tyler Robinson was intending the shooting to be read as like. And like, I wonder if the point was to make people struggle over what the meaning was and to make them confused and to kind of, you know, to say, in a sense, that this is part of an in crowd, an in group that did this, which is very much the opposite of what you saw in the 60s and 70s where it was, no, we want people to know why we're doing these bombings or doing these shootings because we're trying to achieve A political outcome. I just, I think that's a really important distinction that seems to be so far supported in what we're learning about this particular incident.
- [22:27]
Benjamin Wittes
I don't want to speak to his motive because I really have no idea. But I do want to say that it was only a few years ago that the salient thing that we know about him would have been completely different than it is today. So today in the right wing media ecosystem, the overwhelming fact seems to be that he had a trans significant other. And people are reading an enormous amount into that. A few years ago, it would have been that he would. He seemed to play a lot of shooter video games. And in the last video game panic of, you know, my earlier adulthood, you know, the fact that kids would get online and shoot each other bothered a lot of people. And that was, you know, there were questions about whether this was related to significant violence. And so, you know, how do we know that today's moral panic is the correct one and yesterday's is wrong? The answer is, well, we're really used to shooter video. Video games now, whereas, you know, people with trans. Significant others, that's still very foreign to a lot of people.
- [23:38]
Shane Harris
Yeah. And I think that to that point too, of people reading into his. His reported relationship, and this may be a little bit off topic, but it really does underscore just how. I mean, unconventional is not even the right word to talk about how the FBI has been publicly handling this investigation. I mean, I have. I have confidence that the agents on the ground in Salt Lake who are being led by a special agent in charge who I understand is quite credible and has a strong track record, particularly in crisis situations. That is very different from what Kash Patel, the FBI director, is doing, where you are seeing leaks that are obviously coming from FBI leadership to friendly media organizations that are really just all driving at this trans relationship. And I think that it underscores, and I should say to being amplified, by the way, by people like Laura Loomer, who is a significant influencing force in the Trump orbit, who was literally talking about to use her world trans terror cells that she is now suspecting are at work in the underground. I mean, just absolutely preposterous. But it shows you the degree to which I think the administration or its allies and people on the right really want to focus an intense level of animus at trans people at the cost of undermining the investigation into who killed Charlie Kirk, who was a personal friend of many of those people. And I think that's just really a remarkable facet of this investigation.
- [25:12]
Scott R. Anderson
Absolutely. I want to pull in one more thread of this that strikes me as kind of a unique aspect of this that's undercovered or not frequently enough connected with the phenomenon, not just of these political shooters, but increasingly of school shooters, community shooters, and a lot of other people who are overwhelmingly, as they always have been, young men. And that's this idea of what. And it's an issue where a lot of people on the right have been particularly outspoken about in other contexts. This idea of the boy crisis, of the social disconnection that a lot of young men, particularly of the teenage or young adult set right now are coming from, who are survivors of the pandemic during kind of formative adolescent years. There was a really, really powerful op ed on this in the New York Times maybe a month ago by Robert Putnam of Bowling Alone fame, sociologists, and Richard Reeves, who I believe actually has a Brookings affiliation. But it's the head of association that studies kind of issues around boys and men in development. And it's called the boy crisis of 2025. Meet the boy problem of the 1900s. Not my favorite title for an op ed, but that's okay. It's a really, really terrifying piece to read. I'm a father of a young boy, so I am particularly perhaps sensitive to this. But some of these statistics are unreal, and they appear very credible. I did a little bit of a dive to see if I could see PUMI debunking them. In the week or two after this op ed came out. I didn't find anything super compelling. These are the most compelling ones that jump out to me. According to their statistics surveys, they've done 25% of boys and men aged 15, 34 told Gallup they'd experienced loneliness a lot the prior day. In one poll, one in seven young men report that they have no close friends. In another poll, it's up from 3% in 1990. Two thirds of men under age 30 in another public opinion survey said that no one cares if men are okay. And it strikes me as this sort of depth of social isolation, which does seem increasingly trend in this age group, in this demographic, takes young men who are historically and across a variety of contexts more inclined to violence and outreach, or at least more open to it puts them in a situation of social crisis, personal crisis, and then you have the Internet intersecting that which provides these very powerful affirming communities, which can be really forces for good, but can also be real forces for bad. And I have no idea how you tackle that. Like, I Have some ideas. I may try and do it as a parent. Although I will be honest, I'm not super confident in those from one perspective, thankfully, I have a few years before my son couldn't really get on the Internet on his own. But how you handle that from a policy perspective, I have no idea. It's just astounding.
- [27:42]
Shane Harris
Yeah, I'm not sure you can.
- [27:44]
Scott R. Anderson
Yeah, exactly. I mean, not in a society with a strong First Amendment like we have, you know.
- [27:48]
Shane Harris
No, I mean, and I will say. And it's very easy for me to say this because I am not a parent and have no desire to become one. I just. I think I would say, like, there's no way I'm letting my kids on the Internet. I mean, absolutely not. I would. And that might be a futile effort.
- [28:02]
Benjamin Wittes
But it ain't up to you.
- [28:05]
Shane Harris
Yeah, watch me try. Right? But, you know, it's just like, I think I joked with you, like, Scott, while we were planning out for the show, you know, I like, remember this line that Tony Soprano had, you know, in a different context, but where he's sort of like, shaking his head at something his kid has done and he's like, fucking Internet. And, you know, and it's just like an element of, like, you want to just, like, look at it. You kind of throw your hands up at it. But I could sympathize with parents who would say, my solution is, I'm not going to give my child a phone until they're 18, because it's just. It's. You know. But I'm just deeply skeptical that government policy can do this. And I think Utah. Right. Has tried to do the whole limiting social media by age, which is very interesting. But. No, I mean, it's that this is like. That's like trying to keep kids from sneaking out of the house. I suppose they're going to do it.
- [28:54]
Scott R. Anderson
It's an astounding challenge. And, like, how do you tackle it? But it strikes me as it's one that really is a driver for these phenomena that seem like they're becoming more common. And how do you tackle that? And it's just one expression of a much bigger set of policy problems that's affecting tens of thousands more people in a variety of ways. And then the Internet's a really good thing for a lot of kids as well, because it gives them outlets and communities they need because they're facing different sorts of pressures. It's just astounding. Well, something tells me we're going to have opportunity to revisit this Topic. Although we had not done our due diligence yet. Shane, thank you for bringing us to our attention and calling us out on our negligence. We've got another topic we want to talk about today. This is one we've talked about a little bit recently and a number of times over the year. But, Ben, you have a case to be made that we're still. Perhaps not we, but everyone is still not talking about it enough at this particular moment. And that's something being committed by our old friends in the Russian Federation. Talk to us about that.
- [29:48]
Benjamin Wittes
Yeah. So I would just like to point out that on Rational Security, last week we talked about the Russian incursion in Poland. So I'm not saying we've ignored it or we should. We haven't talked about it at all. But right after we did this, there was a Russian incursion by a drone in Romania. And I just want to say it was barely covered in the US Press. A Russian drone or maybe a pair of them crosses into Ukrainian airspace and hangs out there for an hour just to prove that they can do it. And the world kind of. I mean, Romania summoned the Russian ambassador to protest, and that seems to be. I think the New York Times covered the diplomatic protest. But when our colleague Nastya texted me in the middle of the night that this was happening, I went and looked for US Media, and there was no coverage of this. It was quite of interest to European media. There was a Reuters story about it. There was a Bloomberg story about it, but it raised the question, what if Russia was making a point of probing NATO borders multiple times per week and nobody cared. So if you send multiple drones into Poland and they crash in civilian areas and, you know, then it turns out that, you know, that many drones people care about. But if it's just a couple of them and it's Romania and, you know, is Romania, you know, it's. They speak a language that's like, close to Latin. I mean, it's hard to take entirely seriously. Romania, even though it is a NATO country.
- [31:55]
Scott R. Anderson
Don't. Don't take Ben on that, folks. We love Romanians here. I have lots of very close Romanian.
- [32:00]
Benjamin Wittes
I love Romanian.
- [32:01]
Scott R. Anderson
Delightful.
- [32:02]
Benjamin Wittes
I love Romania and I love the Romanian language. But I'm just saying it's not. It's pretty far from people's consciousness, although it is one of the roaring tigers of the Eastern European eu. So it's done really, really well. But the point is, what if you poke Romania and people don't care, and then maybe you poke Estonia and people don't really care. And all of a sudden, you've kind of made the point that Europe. Europe's not really going to defend itself without the United States. And the United States really isn't up for it right now because we'd rather extort concessions from the Ukrainians. And all of a sudden, the whole thing looks a little bit like Swiss cheese. And that is exactly what Putin is doing right now. And we all seem to be kind of watching it, nodding and knowing that that's what's happening, but not really doing anything about it. And so I just want to say, I don't really know what to say about it, because, like, pounding my fist on the table and saying the European alliance is coming apart is not really going to do anything. But, guys, the European alliance is kind of coming apart. That's all I got.
- [33:31]
Shane Harris
I. I want to. I want to tell you you're wrong. Right. But I think. I think you're right to draw attention to this and to frame the question as, and why didn't anybody pay attention to when it happened twice.
- [33:44]
Benjamin Wittes
Right. The second time should have been a bigger deal than the first time.
- [33:47]
Shane Harris
Yeah, bigger deal than the first time. Right. And, you know, at first, my instinct was, wait, is this. Because it's, you know, these are kind of. These are Eastern European nations that we think of as somehow, I don't know, within the old Iron Curtain ambit. And so there's just kind of like, you know, a bias against that. Like, if they flew them over Germany, would that make a difference? I'm not sure it would, though. I mean, like, nobody. I don't think anybody thinks that Germany is going to respond militarily if a couple of drones violated its airspace. I mean, maybe the issue here is that people are discounting it because it's drones and not, you know, a missile that was slammed into a government building, let's say. In which case, I think then we'd be anticipating a war might be about to break out. But I'm with you on this, Ben. I mean, Putin is a master at just the constant probing and the pushing and allowing this kind of resignation to settle in amongst the allies so that we are less resolved and less willing to take him on. I mean, he's playing that long game. He knows what he's doing. I'm disappointed that the press didn't pick it up, because if anybody should be calling attention to this, it's people in my industry. And I suspect Putin's probably gratified that it didn't get the attention that it deserved.
- [35:05]
Scott R. Anderson
So I want to push back, but put it in a little bit of context about what Russia is doing and its impact. I think it's actually a little bit more of a mixed story than that. And I'm not sure it's an indication yet that the European US Alliances falling apart. This is an issue I've been very concerned about for a very long time. I think I've written about it more than just about anything else. Law for over the last eight years I've been here. It is definitely a concern. The interesting thing I've had is I was in Aspen this past summer for Security Forum where I saw Shane record a lovely podcast. I had a lot of conversation with Europeans. I was one of my target audiences of people I wanted to talk to as well as a really, really good conversation with Shashank Joshi, who's the defense editor of the Economist that we actually released for the Lawfare podcast as one of our Dispatches from Aspen series. We did. He made the point that at least as of this summer, Europeans were feeling a lot better about transatlantic security. Trump administration had backed down a lot from its rhetoric, having gotten the win on 5% funding commitments from NATO members, although it's a little fuzzier than that. But they had the talking point that they got the 5% commitment. They were happy to happy about kind of the status of it as a formal alliance. His point was that there were actual signs of continued operational integration and that the United States hadn't stepped back from actually their day to day participation in exercises. In this particular situation in Poland, I haven't looked into this in the Romania case, specifically in the Poland case, I actually looked into this a little bit about what people inside NATO, inside the US military deployment that coordinates well, several of them that coordinates with NATO said about why US forces didn't scramble in response to, to the Polish response. And they actually have a statement here from. This is from saceur, who I blank on his exact title. I think he is one of the more senior Americans in the NATO alliance. And he said basically look, in this case no US kinetic assets were mobilized. That's because we weren't up on our schedule. We essentially rotate forces that have different duties at different times and it just wasn't our turn. And we didn't feel a need that this warranted anything more than mobilizing the forces that we stationed specifically to respond to kind of incidents like that. So I'm not sure it's there on a operational level yet.
- [37:15]
Benjamin Wittes
I agree with that.
- [37:16]
Scott R. Anderson
Yeah. With the US app there's a larger political gap. Like, what do you think the Trump response is? Or not? I'm not sure. It is not inconvenient to still have some people say in the broader architecture, leave the daylight of maybe this was not a deliberate provocative act by Russia because it doesn't force confrontation with Russia the same way it would if everybody immediately said Russia, you're lying. You know.
- [37:43]
Benjamin Wittes
And what about the second one?
- [37:45]
Scott R. Anderson
The second one is trickier. That's what we have to look into. And I am curious about that.
- [37:49]
Benjamin Wittes
I would just like to go over the timeline of the second one. Okay. Because this is less about the Trump administration than about public attention. Granted, Charlie Kirk got shot.
- [38:01]
Scott R. Anderson
A lot was happening.
- [38:02]
Benjamin Wittes
The New York Times was super busy. But this incident happened on Saturday and the New York Times story about it was reported on Monday, I believe, or on the 14th. So the story doesn't even run until a day after, after the incident happens. There's no real time coverage of it at all. And so my question is, before you get to the policy level or the operational level, there's this attentional level, which is Russia is poking and poking and poking at the Western alliance and we yawn. And that's not principally, in this instance, principally directed at the Trump administration, although I would love to hear what they have to say about two such incidents in a week involving two NATO members. I believe Trump's tweet on the subject of the Poland one was here we go. Which is again gonna mean a lot of different things. Mean a lot of different things in.
- [39:16]
Scott R. Anderson
The mobilizing nuclear bombers or something. We don't really know.
- [39:19]
Benjamin Wittes
But I'm. My first question here is directed at the New York Times foreign desk. Why is Russian drones in Romania being reported in the past tense rather than the present tense?
- [39:36]
Scott R. Anderson
I 100% agree with you on the press criticism. And that I do think is a big problem, although not a unique one to this case in that we do not do a good job balancing the weight of domestic significant serious developments with certain scale of seemingly minor but potentially hugely, hugely consequential developments overseas. That's just something that US Media has never done a great job of balancing.
- [39:56]
Benjamin Wittes
Headline NATO alliance collapses. US doesn't notice because of Charlie Kirk, perhaps.
- [40:05]
Shane Harris
Can I tell you how I read the. Here we go. It was, it was, it was, it was like. It was. I honestly read it like in the, like in the tone like my mother in law would usually be like, oh, here we go.
- [40:14]
Scott R. Anderson
Me too. That's 100.
- [40:16]
Shane Harris
Oh, now you know, it's like, almost like this sort of aggrieved, like, you know, here they go now again, you know, it's like, not like, you know, here we go, let's roll. But more like the other just sort of rolling your eyes and, you know, this again, that's how.
- [40:30]
Scott R. Anderson
That's exactly. I read it as a. These guys again, what are you gonna do? These scoundrels. Yeah, it was a weird message, but lens. Not the sort of precision you would hope for when you're dealing with nuclear competition. I will say. I will say that no one's coming to the defense of that particular tweet. Mr. President, apologies, but it's sort of.
- [40:47]
Shane Harris
His style, you know, imprecision style.
- [40:49]
Scott R. Anderson
Hey, it's strategic ambiguity, right?
- [40:51]
Shane Harris
Yeah, that's what it is. Keep him guessing.
- [40:55]
Scott R. Anderson
So let me. Let's circle back on this idea, though, of this is Rush deliberate Russian action. Because I, I agree. I think you had to put money down on this. My money's on deliberate Russian action. Am I going to put my life savings on it? Maybe not. But I'd put the heavier dose of money on deliberate Russian action versus something else. Particularly now that we have the second incident, although weirdly, very different scale, very different trajectory, very different thing than the Polish incursion, which is weirder to follow.
- [41:19]
Benjamin Wittes
Up with the more minor, by the way. It's not the second, it's the 20th. If you add cables cut in the Baltic Sea and, you know, 100 other little things that are individually small enough that we don't choose to notice them.
- [41:38]
Scott R. Anderson
Well, then that goes back to my question, because, like, Russia is a habitual provocateur and has been for two decades now, at least. I mean, in some ways, like dating back through the Cold War as well, but at least for the two decades, right? From the assassinations of prominent dissidents and other people who have fled to the west, like high profile and sometimes killing nationals of other countries in the Skirpel case, to cutting underseas cables, doing all sorts of weird gray zone warfare type things intruding upon parts of Eastern Europe, sending criminal groups to sabotage different locations across Europe, and particularly in Eastern Europe over the last several years. I mean, it's astounding the sheer scale at which they do these different destabilizing things. But I wonder what the strategic objective is exactly. Because there's kind of like two different models for doing this sort of gray zone warfare. Maybe three. Right. If you accept this deliberate and something you are 100% doing. One is you are preparing to invade and you're doing this to actually soften the ground in front of you. That doesn't seem to be the case here because the operational strategic significance of these things, even en masse, is like limited and often more broader and long term, like influencing the strategic calculus.
- [42:52]
Benjamin Wittes
And the Russians simply do not have the manpower or the capacity to take on even a limited portion of NATO right now.
- [43:04]
Scott R. Anderson
Exactly. I think that's like the least likely explanation that this is imminent. Right. Although you think of Taiwan and China, where China has been doing really similar things over the last 10 years. Different types of specific activities, but similar gray zone sort of harassment, consistency, that's a much more real reality. Right. So like that's definitely exists in the spectrum somewhere in the world. The second category, possibility, is on kind of other end of the spectrum, which is that we're just being assholes and like we're doing this to make it more costly for us for you guys to oppose us. It's more difficult. We're imposing domestic costs. It's inconvenient. You're going to have to explain these things to your citizens. You're going to have to deal with the fact we're upsetting your economy or we're causing these high profile incidents and we say, oh, this is an accident, but you guys are going to spin off about it and people will. It'll cause tension in the alliance about how we respond and that we're just destabilizing this. But there's no minimal income strategic objective. And in between the two is the kind of like poking for soft spot strategy, saying, okay, we are stress testing different types of capacities NATO might have, Europe might have. So that if we do go to the far end of the spectrum and decide to invade at some point, we have a better sense of vulnerabilities. The challenge of that, of course, is that like that's in some tension with the lower end just being an asshole side of the spectrum. Because when you start doing this stuff, it gives an impetus for your enemy to respond. Right. Like when you detect vulnerabilities. Often countries that are seriously preparing for warfare actually want to keep those vulnerabilities. Right. They want to keep awareness of them. They're very sensitive secrets because they want to be able to exploit them if and when they really need it. In some ways, Russia is, I want to say, blowing their load. That seems like an inappropriate thing to say on a podcast. But essentially they are pulling the trigger way too fast on this and losing it because they are triggering a policy response that's going to make it less likely and able to use these exploits down the road. So I'm not sure this isn't just Russia being an asshole in a way that disadvantages it in the law.
- [45:00]
Benjamin Wittes
No, I don't think that's right. And I think there is a strategic purpose here. And the strategic purpose is to show the Eastern European countries that they cannot rely on the Western European countries or the United States States. And if you do this a bunch of times, and Poland may have backfired because actually the Dutch scrambled quickly and, you know, were reasonably effective although a bunch of the drones did not get shot down. And so, but if you do this repeatedly, you show these Eastern European countries that they are making a big bet on the west and, and the west will not, will not come save them. And then you undermine confidence in the reality of the deterrence posture that is NATO's existence. And I think it is more calculated than just being an asshole.
- [46:02]
Scott R. Anderson
Shane, do you have thoughts?
- [46:04]
Shane Harris
Yeah, I mean, I tend to agree with Ben on this. I mean, one thing I wonder is, you know, is if the message is, if the message Putin is trying to send is the United States is not going to come to your defense, he may be right about that. I don't think that applies to the Europeans, I mean, who are now obviously spending a hell of a lot more to try and build militaries, which I think is not. I don't read that only as trying to make Donald Trump happy and keep the US in NATO. I read that as for the long term, they're not counting on us being in NATO or at least are betting that it's a significant possibility that we won't be there. I think they would continue in some other arrangement. You know, and it's the other thing.
- [46:43]
Quinta Jurassic
For Putin to do this.
- [46:43]
Shane Harris
It's easy, it's cheap, it costs him nothing to poke these weaknesses, create more fissures, create more tension and just exacerbate the tensions that are already there with a President of the United States that thinks that our European allies are a bunch of freeloaders anyway and doesn't really see the, the strategic benefit or the wisdom of the NATO alliance to begin with. So, yeah, I mean, I think it's intentional. Will it backfire? I mean, it doesn't cost them anything to do now. And he is a long term thinker. I mean, that is one thing. The other thing I think is maybe he's learned some lesson from Ukraine, but he's also somebody who has consistently overestimated the strength of his own military and his own capacity to actually conduct wars. So there's a little bit of a fuck around, find out aspect to this maybe. Or that's just my wishful thinking.
- [47:35]
Scott R. Anderson
Yeah, I mean that is honestly where I end up falling on this. I look at Russia's position where it was in part as a result of these provocations and they're facing a more unified, militarized Europe. One that frankly the Trump administration, for all its shortcomings and genuine concerns I still have about transatlantic alliance, is in a better relationship with the transatlantic alliance than it was in 2017 through 2020. True. And is actually going to respond to these steps. Look at where Poland is in relation to Europe's approach to Russia now versus where it was in 2020. 2021. It's a real dramatic shift. I'm not sure this isn't backfiring. Doesn't mean it's not scary and worth taking seriously. If anything, that means we have to take it more seriously because that's what leads to the backfire. But yeah, I don't know. I remain under impressed by Putin's long term strategic thinking, if I'm being honest. And I think this falls into that symptom. But perhaps I am the minority on that one.
- [48:25]
Benjamin Wittes
I'm still just focused on the New York Times.
- [48:28]
Scott R. Anderson
Yeah, well, I have no doubts about their strategic thinking.
- [48:32]
Shane Harris
Let's be able to call over there. Give them hell, Ben. I would just say one coda to this is that the greatest immediate threat to NATO alliance holding together right now might actually be whether the United States decides to put troops on Greenland. I mean, like if there's somebody who's going to collapse NATO, it's us.
- [48:48]
Scott R. Anderson
Yes, exactly. I don't think Putin gets any credit.
- [48:50]
Benjamin Wittes
For that one, unfortunately.
- [48:52]
Scott R. Anderson
Well, it's been great to have you back here in your old seats, back in the not so, you know, jungle studio, but whatever. This is the virtual jungle studio.
- [49:00]
Benjamin Wittes
And without women.
- [49:02]
Scott R. Anderson
Without women. Importantly, just the boys. Just the boys. Getting down to some news. Well, thank you both for coming back on this very special episode. It's great to have you back here on the show and hopefully we'll have everyone back together again before too long.
- [49:17]
Shane Harris
Thanks, Scott.
- [49:18]
Benjamin Wittes
Thanks.
- [49:20]
Scott R. Anderson
Hey, folks, Scott R. Andersen here. Things are finally beginning to cool down here in Washington, D.C. there's a nip in the air. The days are getting shorter. Football is back on tv. All the signs are here. Autumn is coming. While the kids are sad to be back in school. It's a favorite season for those of us who are bearded, burly and sartorially inclined as it's finally a chance to bring back the flannels, sweaters, denim and tweed we had to put away for the summer. But if you need a little help getting your closet ready for the season, don't sweat it. Quince has you covered. From new denim jeans to leather jackets to woolen sweaters, Quince has everything you need for cooler days ahead. And all of it is comfortable, classic and high quality. The types of items that will stay in rotation for years to come. The Mongolian cashmere sweaters, which go for an incredibly reasonable 60 bucks, are what got me into Quince in the first place. And if you are going to be back at my regular rotation this fall, I also picked up an Italian wool overshirt that's set to be my main light layer when things get nippy, and an organic cotton long sleeve polo that's already begun to make its way back into my regular outfits. Plus, Quince is now offering more than just clothes. From houseware to luggage to rugs, Quince has tons of the everyday items you need. Personally, I'm thinking some flannel sheets may be just the thing to get before the temperatures really drop. And the best part is that by cutting out the middlemen, Quince offers all these high quality products at half of what they would cost you at other stores. Plus, Quince only works with factories that use safe, ethical and responsible manufacturing practices. So keep it classic and cool this fall with long lasting staples from quince. Go to quince.com security for free shipping on your order and 365 day returns. That's Q U-I-N-C-E.com security to get free shipping and 365 day returns. Again, that's quince.com security now. Now let's get back to the show. Say hello to Samantha. Hi there. Samantha built a SaaS platform that helps small businesses manage their workflow.
- [51:17]
Alan Rosenstein
But she needed a smarter way to reach decision makers.
- [51:19]
Scott R. Anderson
That's where ACAST came in. They helped me produce a professional audio ad which played to business owners and.
- [51:24]
Quinta Jurassic
Ops leads using their audience attributes targeting tools.
- [51:27]
Scott R. Anderson
Suddenly my platform was showing up in.
- [51:29]
Quinta Jurassic
The ears of the exact people I needed to reach.
- [51:32]
Scott R. Anderson
Now that's streamlined marketing. Samantha, what's your tip for scaling smart?
- [51:35]
Quinta Jurassic
Solve a real problem and make sure the right people hear about it.
- [51:39]
Alan Rosenstein
Promote your business with podcast ads on Acast.
- [51:42]
Scott R. Anderson
Get started at go.acast.com advertise. So now that we have heard from Shane and Ben, let us transition to our more recent co host emeritus's to hear what they think we should be talking about. More here on Rational Security. Well, look who came crawling back from familiar faces.
- [52:08]
Alan Rosenstein
The number voicemail texts that I have from you, Scott, begging physical, physical letters with chocolates. It's really nice, actually. I should have held out for more.
- [52:19]
Scott R. Anderson
It's incredibly expensive. It's crazy. And I started weeks ago, as I always do in planning these things. Of course. Well, thank you both for coming back and slumming it with me here on the podcast. Of course. I am talking to Alan Rosenstein, professor at the University of Minnesota School of Law, senior editor at lawfare, and our alumnus, sadly, Quinta Jurassic, now staff writer at the Atlantic, previously senior editor, among other roles. Thank you both for coming back on Rational Security, your once frequent hangs. It's good to be back with you guys. It's been, I think, probably a year, because I think the last time we did this was our reunion episode for our last anniversary of rat's eye 2.0, I think so. Together, all three of us. I think you each have been on once or twice since then.
- [52:58]
Alan Rosenstein
Thank you, Scott, also for keeping the flame of Rational Security. I'm kind of. Can I be honest with you? I'm kind of shocked that you've held out this long. It is such a pain. It is such a pain in the ass to herd the cats at lawfare to do this, and yet you continue to do it.
- [53:14]
Scott R. Anderson
You know, I will say, this is what I will say. I look forward to this every week. It is a little bit of a pain in the ass most weeks. I will not deny that. But it's fun because it's like, I get to set the agenda and talk about what I want to talk about with people. I enjoy talking about things. It's like, you know, I don't socialize much at the office because I'm kind of a grump in person. And this gets to be my excuse to feel like I'm socializing with some of my colleagues and just fake it for me.
- [53:35]
Alan Rosenstein
Just that you're intimidatingly tall. I think that's the key. It is hard on zoom. No one realizes just how tall you are. And so I feel much freer to tease you. Whereas, like, in person, you could, like, sit on me and, like, that'd be. I would be done that. That's it.
- [53:47]
Scott R. Anderson
And have. And absolutely will. Absolutely.
- [53:50]
Alan Rosenstein
And have. I mean, usually. Usually that's consensual, but anyway, yeah, it's.
- [53:54]
Scott R. Anderson
Like slouch aggressively in person to try and hide it. It's not so easy. Sadly, these days. But Internet, no one knows how tall I am. Everybody seems to assume I'm actually quite short. When they meet me in person, they're always like, God, you're huge. And I'm like, I'm only slightly above average, really. But okay.
- [54:07]
Alan Rosenstein
I thought I was like, five, six. Are you basically a. Oh, yeah, 100%, 100%.
- [54:11]
Scott R. Anderson
I'm six' four, 250, man. I'm basically like, you know, NFL player in proportions, slightly less fit, but professional athlete in proportions. Anyway, let us turn to the topics that you all have brought for us today. Because like I said, one of the nice parts about rational security for me is that I get to hit the agenda every week. I get to talk about the things I want to talk about. But it's been a while for you guys since you've had a chance to set the agenda and talk about what you want to talk about. So I want to hear what you think we have not been talking about enough or should be talking about more on rational security that's been on your mind lately. Quinta, let's start with you. What did you bring for us today?
- [54:44]
Quinta Jurassic
Yes, exciting to bend you all to my will. So I have been up to my neck in DC Crime data, thanks to what people seem to be calling, variously, federal surge, federal crackdown. There's not really a single word for it, in part because it's really kind of a hodgepodge of a. A bunch of different agencies all playing different roles, including DoD. But I have been tracking how things are going, in particular, how they have been going in the federal district court, where since the beginning of the crackdown, Jeanine Pirro's office appears to have filed, according to my numbers, about 90 cases. They filed in one day, the heaviest day, 14 cases in a single day, which is basically comparable to the earliest days of January 6th. That's a crazy amount of cases to paper in a single day. And I gotta say, folks, they're not doing great. There have been a lot of gun cases, particularly people charged under the statute that outlaws being felon in possession of a firearm. And many of those, they have been able to get indictments. But there are also a lot of cases that they have charged, particularly cases involving 18 USC 111, a assault on a federal officer, where they have either dismissed the case outright or dropped it down to a misdemeanor from a felony, either reportedly or sometimes unclear why, but reportedly. In a number of these cases, it's been because they were unable to convince a grand jury to indict and one of those cases was of course, the sandwich guy who threw a Subway sandwich at, I believe, a CBP officer. So in that case, yes, the grand jury would not indict, in this case, a salami sandwich. These are some pretty striking numbers, folks. What do we make of it?
- [56:41]
Alan Rosenstein
Yeah, the grand jury stuff is crazy. I mean, it is just not that hard to get a grand jury to return a true bill, as they say, and indict someone. And I think to me the question is why are they having such a low hit rate with the grand jury? I mean is, you know, one possibility is just pure incompetence. Like, like you do still have to do the work. I mean, grand. I mean, I, I have very limited experience with working with grand juries from my time in doj, but even my limited experience working on very low level cases is that they take their jobs quite seriously. The ones I worked with were out in Maryland. But I'm sure the DC grand juries are quite similar. I'm sure all the grand juries are similar. And the people are civic minded. They're sworn in, they do this for a long time, like they care about the work. So one possibility is that like whoever, whatever lawyers they have staffing, these are just doing a bad job, basic blocking and tackling. The other possibility, which would be more dramatic and you know, it's an interesting question because I think it's less obvious how to feel about it is whether this is effectively grand jury nullification, which is to say they are presenting solid cases. Right. Like, look, I mean, you shouldn't throw sandwiches at CBP officers. Like, I'm happy to say that. Right?
- [57:49]
Scott R. Anderson
Like, should you be charged with assault?
- [57:51]
Alan Rosenstein
That's not, I think that's not, that's not the point.
- [57:54]
Shane Harris
Right.
- [57:54]
Quinta Jurassic
Like assault with a Bradley Weapon. Weapon. Someone said when I walked into the.
- [57:58]
Alan Rosenstein
Media room for the arrangement, that's the kind of humor you have to go to the Atlantic for.
- [58:05]
Scott R. Anderson
Hey, we had Hunt for Bread October. That's a longtime winner.
- [58:08]
Alan Rosenstein
That was. Hunt for October was very funny.
- [58:10]
Quinta Jurassic
There's a joke about pastrami. Hold on, I'm going to pull this up because it was really good.
- [58:17]
Scott R. Anderson
Go on, Alan, finish. We'll circle back to Gwenda on the Pisrami joke.
- [58:21]
Alan Rosenstein
Look, look, I mean, like one should not throw sandwich officers at federal agents doing, you know, federal agent work. Like, I understand you may not like immigration, but like, that's not how this stuff works. And assault is assault, right? Like assault does not have to be with a, you know, a gun or a Hammer. Right. Like it is an unwanted bodily touching, or at least that's the torts version. I forget exactly what it is in D.C. criminal law. Right. So, you know, how do we feel about grand juries saying, yeah, no, you person, I do think there's probable cause that they've committed a crime enough to indict, but I don't want to do it. Right. I am sure there is a voluminous scholarly literature on both the history and the kind of normative theory around jury nullification. Both. I know there is one on the petite jury, like the trial jury. I don't know if there are sort of different considerations for the grand jury. And I don't think it's hard to make the case that grand jury nullification or, or to maybe a less loaded term would be the grand jury discretion is appropriate. After all, it is the grand jury that is indicting you. It's not the government. And so there's a reason why we have individuals from the community do this and not prosecutors. But let's put it this way. Even if you think that it is appropriate for grand juries to exercise their discretion, and I think there's a very good case in this case here, in the long term, it's not good in the long term. It's a bad state of affairs where you have grand juries feeling the need to do this because the government is bringing really ridiculous cases, because at some point the government will stop bringing ridiculous cases. But now you have precedent and it's just, it's not a good thing for the rule of law, even if in the moment we all can get a sort of a good laugh that like the, you know, like Jeanine Pirro can't, literally cannot indict a pastrami sandwich or salami sandwich, which is just very funny.
- [60:12]
Quinta Jurassic
So the image that I was thinking of is a sign at the Free DC March, which I was covering the other weekend, which is somewhat. With sandwiches strapped around them and like a bandolier, and it says, I'm pro Valloni and I vote there's one. So can I. Can I just add two things before you step in?
- [60:31]
Alan Rosenstein
Am I being too prissy, Quinta? Tell me.
- [60:33]
Quinta Jurassic
No, no, no. So I think there are serious questions here. And I've been wondering about whether to think about this as grand jury nullification or not. So two things. First off, I do think that it is notable when I was doing some reporting and background reading on this for a piece I was writing, the idea of grand jury nullification is foundational to why the grand jury is included in the Constitution to begin with. This is very famously the case of John Peter Zenger, the publisher in the colonies, who had published things in his newspaper that were critical of the king. A grand jury in the colonies refused to indict him even though he had clearly done the thing that he was being prosecuted for. And that is why it's in the Constitution. It is there as a check. That is one very strong argument. I think that there is a way you could argue that the grand jury in this instance and in la, where we've seen a similar dynamic with cases coming out of the anti ICE protests, there are kind of returning to a much older model of what a grand jury is for, where it's less an arm of the state than this sort of intermediate body between the citizen and the state. The second point is that we do actually have some data here, at least I think we can extrapolate from the data I'm keeping about how the grand juries are acting. So there are a handful of cases where the charge is bullshit, to use a technical term. You look at it and you're like, why did they charge this case? Right. I think the best example is probably Christian Enrique Carrillos Torres, who is the moped driver who was arrested violently near Logan Circle. He was arrested by ICE agents. If you've seen the video, he kind of struggles during the arrest. There's a bit of a kind of keystone cost ops thing. And one of the ICE agents, like, falls and hits his head on the pavement. So they indicted, or, excuse me, charged Carias Torres with a felony for basically scratching the ICE agent as he was being arrested and tackled violently. There's another example, and this is a case where there are actually three notre bills of a woman named Sydney Lori Reed, who allegedly slightly scratched an FBI agent's hand while being pushed against a wall. So those are cases where I think it's. It seems like real overcharging. You could argue whether it meets the terms of the statute. It kind of seems like overcharging. There are cases like the sandwich guy, where I suppose it depends. For it to be a felony under D.C. law, it has to constitute physical contact. So I suppose you could make some argument about if I bean you with a baseball, does that count as physical contact? But you could say it fits the terms of the statute. And then there are cases where it seems pretty clear to me that under other circumstances this might be a person who would be indicted. So there was an example. One individual allegedly basically walked up to the National Guard in the middle of the street, shoulder, checked them and said, I think it was like, I'm strapped or I'm packing. So pretty clearly, according to the complaint, was a threat. And the grand jury declined to indict in that case. And so that one, I think, is actually the one that comes the closest to me, me in terms of jury nullification. But the other thing is a lot of these cases in LA that got downgraded to misdemeanors got downgraded because the government didn't actually turn out to have the evidence to show that what they'd alleged in the complaint happened. So it's a little hard to say from outside. It is also true that a lot of these gun cases, they've secured indictments. So it's not like grand juries are just like, refusing to indict anyone. Which I was kind of curious whether that would happen.
- [64:07]
Scott R. Anderson
So I actually want to circle back on the evidentiary point because that's been a question that I've kind of underlied this LA and DC thing because it ties into the potential legal issues, particularly around National Guard participation and in the case of la, active duty military participation. Before I do, just on this question of nullification, I think it's interesting to see this sort of return. And I don't know if it really poses big rule of law concerns when we're talking about relatively minor offenses that are on the peripheral of the interpretation of the statute, which I think even the hipcheck one is like, it's not the core of what that statute is supposed to get at. Oh, I agree. It's like, closer to the center than some of these other cases. Because this idea is that the idea that the grand jury should just be an absolutely neutral fact finder is not part of the original concept, what a jury does, and it's not consistent with what happens in other parts of our legal system. Prosecutors exercise discretion when they violate, when they choose who to prosecute under violating federal crime or state crime or local crimes as well. Right. Like, you can break the law, you can commit facts that are a violation of the law, and the federal government will choose not to prosecute you without even having to pardon you. Setting that aside, the pardon power for a second. And petite juries do the same thing. Have you ever served on a petite jury? I've been on a petite jury that hung, and it did not hang because people had real reservations about the facts that happened. It's because certain juries were like, I feel bad for this guy, I don't want to actually prosecute him. So I'm not sure it's actually that dissonant with the way other parts of our legal system operate. Our legal system really is, I think, as a virtue, although it has lots of negative externalities, perhaps like bias towards making it hard to criminally prosecute people. And that includes a lot of these sort of like political and societal gay checks. Does that, I mean, Alan, does that like, not scratch the itch for you about saying why maybe this isn't such a bad thing? Because it would make me much more concerned if you were really getting grand juries refusing to prosecute things that were, like, clearly a violation of the laws that are well established and a highly problematic one, like the intended prohibitive conduct. Although even that I'm not sure is beyond their role or their authority, if that's what they choose not to do. The same way a prosecutor could choose not to prosecute something that's just really clearly in violation of the law.
- [66:14]
Alan Rosenstein
No, I think it's fine. Look, look, I don't want to look, I mean, we are now nine months into the Trump administration. Even I have lost my ability to both sides, right? Like, this is all bad and it's all terrible and like, I'm more than happy to concede that point.
- [66:27]
Scott R. Anderson
I'm about to both sides the hell out of this. Don't worry, it's coming.
- [66:31]
Alan Rosenstein
I just think it is interesting to reflect on, like, some potential not great third order consequences, right, of a situation in which the grand jury loses the trust of the government in a way that, because, look, what's good for the goose is good for the gander, right? And if you have a norm of grand juries not returning true bills, even when there's clear evidence that this is a prosecutable case, maybe in the end that's fine because they have this checking function, but I can give you many, many fact patterns, right, in which, you know, good liberals would not be pleased with this, with this, with this result. Now, again, I don't want to be misunderstood here. Like, just because a grand jury discretion, power can be abused doesn't mean that a grand jury therefore is obligated to return a true bill every time the prosecutor can establish that someone threw a baloney sandwich at someone else. But, you know, look, as has so often been the case with the Trump administration, you know, the responses that he and his people produce from institutions are themselves sometimes corrosive to those very institutions over the long term. And that's something that should not be Ignored.
- [67:36]
Scott R. Anderson
So one question that's stood out to me in all of these cases is the role of the military, which obviously is weirdly integrated in kind of like a two steps removed deliberately from actual law enforcement activities, particularly in la. But to some extent in DC too, where you have military operating in LA on the protective principle in dc, you actually have some National Guardians who are being deputized by D.C. military, at least D.C. national Guard. But there's always a concern that both of these, and they're both subject to legal challenge now, will violate the Posse Comitatus Act. And the one place we've seen Posse Comitatus act violations actually have legal bite with any consistency, although it's not that consistent, but it has happened a number of times across a number of courts over American history is in the exclusionary rule, the fact that evidence collected by military officers in violation of the Posse Comitatus act is inadmissible. So I'm wondering whether some of this, particularly where we're seeing evidence lapses or maybe some cases where people were detained by military, the government doesn't want to push the case because they don't want to give additional fodder to additional legal challenges, particularly because their best defenses for both the current ones are kind of like procedural standing, cause of action, things that wouldn't be an issue if you had a criminal defendant raising it. Is there any evidence of that or is there any correlation that you can see from the data about role of the military versus federal law enforcement and city law enforcement?
- [68:54]
Quinta Jurassic
Interestingly, there is not any evidence of that. And I will tell you why I think that is. I think there are a couple of reasons. The D.C. national Guard is operating under its militia status. So the Posse Comitanus doesn't apply there, or at least doesn't according to the Defense Department. We'll see if that is correct, according to the D.C. attorney general. And then the other states, the red state units that have come in, I believe are operating under Title 32. So there's also an argument the posi comitatus doesn't apply, which Again, again, the D.C. attorney General disagrees with. So there's that to start with. The other thing is that I have seen really contradictory information about whether or not the Guard is actually acting in a law enforcement mode. I had assumed the reason why these other unit, that all of these units were not operating under Title 10 was that to get around this passive hamatatus restriction. And we'd seen, I think, think I want to say someone in the administration posted video of Guardsmen being sworn in as deputy U.S. marshals, which allows them to enforce U.S. law. But then we have also seen information that indicates that they are being told to withhold from acting in a law enforcement role, hold back from conducting arrests, that kind of thing. There was only one case that I could find. This is just in federal court, to be clear, so there may be some summoned superior court where a member of the Guard was involved in an arrest. And basically what happened is that the guy drove up onto the mall, was stopped by a member of the park police, allegedly sort of got out of the car and ran away, pulled out of the park police officer's grasp, scratching them. That's what this. That's what he was charged for. I believe this case was dismissed or downgraded to a misdemeanor, and then was grabbed, ultimately caught by a member of the Guard who prevented him from running away. But there's not a law enforcement role there, really. And that is the only instance that I have seen. So I do wonder whether they are being careful precisely because they are concerned about that. I will say also the fact that they have FBI agents and HSI agents and members of the Diplomatic Security Service, you'll be happy to know, Scott, one of them was scratched or kicked in the knee or something while handcuffing some guy who was being cited for an open container. The fact that you have all these agents patrolling the street who are not trained in what constitutes a constitutional stop and search, I think is potentially really concerning for the reasons that you're saying. They're not necessarily up on what the Fourth Amendment restrictions are in terms of when you're able to stop somebody and you could absolutely see a case getting really screwed up because of fruit of the Poisonous tree. We already have seen at least one case. This was an MPD stop, not a federal stop, of a gun case at the very beginning of this surge that was thrown out because reportedly, according to the New York Times, of concerns that the search had been unconstitutional. So it's very, very present, although so far not actually with the Guard.
- [72:18]
Scott R. Anderson
That's really interesting. That's really interesting. So let me take one step back before we close out this topic, just to contextualize this question, because I feel like for those of us who've been following this closely, because I don't feel like this has broken out as much into the tv, radio, high level watching this issue or for folks digging into the legal consequences, the grand jury challenges, the general prosecutorial challenges is one of the biggest data sets that people critical of this have said this is why this is a big problem and it's not going well. The other side of it is DC Crime data, which setting aside the president criticized many of these data a month ago before he started this operation and said they weren't reliable. Regardless, the D.C. city crime data has shown a decline over the last month and change that this operation has been ongoing, particularly around property crimes have been the steepest drive from the numbers I was looking at that CNN posted, like a substantial drop in property crimes of various things like auto theft, defacement, other sorts of muggings. Violent crime, actually that might be a violent crime. Violent crime has also declined, but kind of like the absolute numbers are harder to judge, particularly around homicides and things like that, but also look like it declined, although maybe it's bumped back up for the last few weeks. But there is at least enough evidence that the mayor was willing to set and said as part of her kind of agreement to keep cooperating with federal law enforcement even as they are she objects to and her attorney general is challenging the military presence. Yeah, crime has dropped over the last month. That's the thing that people say is working for this now. It's worth noting crime has dropped. Tourism has also dropped. Actually like general people doing stuff in the economy has really hurt the economy the last month as well. So there's probably some correlation there. People being less out on the streets. So how do these numbers fit together? What do they each tell us about the state of the mission? If it is a law enforcement mission, however we choose to define it, how we should think about. About success, failure, challenges with these different data sets we have none of which really give a complete picture.
- [74:11]
Quinta Jurassic
I think it is way too soon to say anything about the data. And I say this after talking with Jeff Asher, who used to go under the handle crimealytics, who is a crime data expert. And the point that he made to me is that yes, a lot of the data shows a decrease in crime. There was also a decrease in crime before this started. And there has been a decrease in crime since 2024. So if you just look at a decrease in crime, that's actually not telling you anything because that might have happened regardless. What you're really trying to do is compare the slope of the decrease and whether that has increased and crime data is just too fuzzy to say. And all this is preliminary data that hasn't been finalized yet. More data may be added to the picture that's going to take until the end of September. So so we just do not know. I do think it is notable that, you know, Trump got up there in the, in front of the National Bible Museum and said, I think the wording was, you know, there's no crime in gc. People complain about crime, but the things they say aren't really crime. Like, you know, a man has a little fight with the wife and they say that's a crime. That's incredibly disturbing. He's essentially saying domestic violence doesn't count as crime. That would be disturbing in any context. I think it's especially disturbing in a context in dc, where a lot of the methods that the police and federal law enforcement are using to cut down on crime may very well be undercutting their ability to address all kinds of crime going forward, including, by the way, domestic violence. I spoke to a woman who works at an immigrant services nonprofit who works with victims of domestic violence who said that she is no longer telling her clients to automatically call 911 because they are worried that they will be picked up. Now, it is not really clear whether or not the DC's Metropolitan Police Department is cooperating with ICE in the same way it was. It's kind of in flux for complicated reasons. But I would be very worried that you would see a decrease in, you know, domestic violence incidents reported because people are terrified to call the police. And that's going to show in the data as a drop in crime. Crime. But that's not what I mean. That's not what it actually is. And so I think we need to be careful both about how uncertain this data is and when we talk about, quote, unquote crime. What we actually mean by that?
- [76:30]
Alan Rosenstein
Yeah, I mean, look, policing is effective at suppressing crime. Like this is. This is one of the most highly validated findings in all of criminological research. And you know, I think there is sometimes a blind spot, spot on some quarters of the left to sort of deny that and pretend like there are no tradeoffs. The fact that policing suppresses crime, of course, does not answer the question of whether or not it is worth the trade offs of that suppression, whether or not the policing is done effectively, whether thar in second order costs, whether blah, blah, blah, blah, blah. So, you know, I think it's fine to say, and I think it's good if it's reality based. And again, I'm taking Quinta's caution about the data seriously, but I would not be surprised if this suppresses crime. There's not a lot of crime in North Korea either. Right. So like, you know, there are Margins at which. At which this all becomes somewhat excessive. I mean, look, I continue. And look, I haven't lived in D.C. for, for a long time, so I will defer to the current D.C. residents. But, you know, I lived in D.C. for a decent amount of time. I love the city. Like, I really do. I miss it a lot. Like, I care about D.C. i'm there with some frequency. I just.
- [77:35]
Scott R. Anderson
You never call, you never visit. How frequent, Alan? How do I come clean?
- [77:39]
Alan Rosenstein
I just don't care what's happening in Northwest D.C. like, like the. The debate about crime in D.C. is endlessly about Northwest D.C. right? And like Capitol Hill, because that's where everyone who like, quote, unquote matters, right? Like, that's where the chattering classes and the politicians and the intellectuals and the think tankers and the journalists and the lawyers live, right? And like, that's where I'm sure a lot of the National Guard and this is. All of this is being deployed, right? But like, the big crime problem in D.C. right, the people who really suffer are, like, in Anacostia, right?
- [78:08]
Scott R. Anderson
Right.
- [78:08]
Alan Rosenstein
Like, that's the people who are simultaneously, pervasively over policed and under policed at the same time. And so I just. I find it so frustrating, the kind of air of unreality about, like, dudes with guns bored at Dupont Circle. It's like, who are pissing off the nice people at Dupont. Like, yes, all of this is true. It's all bad. But like, I. I don't know, I. I feel like the plot is being missed a little bit.
- [78:29]
Quinta Jurassic
Is it. Does.
- [78:30]
Alan Rosenstein
Am I. Am I making sense with what I'm trying to emote here?
- [78:33]
Quinta Jurassic
I will say there are. There's arrest data that I think that I want to say the Times and the Post have both published that actually does show a fair amount of arrests from across the river in Wards 7 and 8. I don't know if the National Guard has been deployed there. It is definitely true that police have been there with, quote, unquote, federal partners is how they're described in the federal charging documents. And there have been a lot of guns taken off the street. Now, I think there is a separate question of whether that is a effective in terms of building relationships with the community long term. And we've seen quotes from leadership in mpd, not the head of mpd, but I think they're called section chiefs, saying, we are going to have a lot of work to do to repair our relationship with the community here. I do think you're right that it's been geographically Distributed in different ways, let's say. And it looks different in Ward 7 and 8 than it looks west of the river.
- [79:28]
Scott R. Anderson
Well, and there's another data point we have to bear in mind for D.C. which I think also helps explain some of the mayor's behavior in all this, which is that DC Was facing like actual real policing problem before this whole crisis. They've had severe under recruitment for Metropolitan Police Department for several years, really going back to the pandemic and to the Black Lives Matters protest in particular. We saw the police department, like a lot of national police departments, come to a lot of scrutiny and criticism. And on top of that, they have been leaning really heavily upon overtime hours for current MPT staff to fill up a lot of their patrolling commitments and things they wanted to do in specific areas. And their ability to pay overtime has been severely, verily undermined by the budget crisis that's been foisted on D.C. by the House of Representatives, in particular in Congress this last year has not been fully resolved. It's not as severe as it was once feared it was going to be because of some legal machinations that the city is pulling. But it's still very, very bad and very challenging. And that was one of the big budget items was going to have to get cut. This is overtime pay. So in a way, this is like a surge of federal resources. It's a surge of awkwardly emburdened, footnoted federal resources you don't fully control. But I think there is probably some element where the city is saying, well, look, if we have a different federal police officers that can help us do X and Y, that lets us shift resources to Z. And so I don't think it means that there isn't some sort of positive element that may come out of this, but it's the externalities. How you weigh your ability to combat crime or even keep up with the current policies that we've had in place that were under threat and might not have been able to continue on the status quo before these sorts of, particularly the federal involvement. You can see good things come out of this. How do you weigh those against the broader externalities? I think is a trickier picture, but I think when you see Mayor Bowser lean in and accept this, I. I think part of it is probably political show and saying, I'm going to try and not pick a fight with the administration and find a way to politically navigate his outcome. I think part of it may also be there's part of this that actually helps me and my administration accomplish our law enforcement goals because otherwise we are facing a situation where we may not be able to do so. And this helps us reallocate resources, even though it comes with a variety of other complications. I suspect that's more true of the federal law enforcement surge than the National Guard. And that's why she's willing to play ball with one and not the other moving forward, forward, and who knows where the administration will back off on the National Guard part. But I think it's interesting and it's indicative, I think a little more complicated picture than really either side likes to paint it. On this particular question, I mean, although.
- [81:54]
Quinta Jurassic
That assumes that members of these law enforcement agencies are capable of acting as local cops, which they're not trained to do, they don't have those relationships with the community. I think there's a very real concern that they don't know how to de escalate a potentially violent or tumultuous situation. So I don't think it's as easy as kind of moving widgets, like adding widgets to the pile of widgets.
- [82:16]
Scott R. Anderson
So I read at least one account that was saying they're using federal law enforcement to do things like step up foot patrolling in areas like near federal property in particular, and sub in for certain activities that required less specialized police training and experience, like local knowledge, so that they could then surge those other activities. And that's the kind of like, like fungible resource reallocation that all these guys aren't truly fungible, but there's some overlap in their skill sets that seem to be fitting into how the city's trying to make lemonade out of these lemons, if you will, and use them in a slightly more effective way. And at least some of the accounts I was reading, that's part of the reason why they were playing ball with the administration in ways that I think have surprised a lot of people given DC's political inclinations. So we should move on to our second topic. This is really interesting though, and we'll come back to it and I'm looking forward to reading more about your writing on it, Quinta, in the days and weeks to come. But Alan, something else has been happening in digital La La Land, the land of all things Internet and technology. So talk to us about the never ending saga of TikTok and where we are now as of today with some interesting news coming out to the fore.
- [83:23]
Alan Rosenstein
I would just like to say that it bums me that when I die, if I'm remembered for anything, it's going to be for this series of Primal screams into the void that I really wrote this year about the stupid TikTok law.
- [83:35]
Scott R. Anderson
They'll call you a TikTok influencer, but not the way you think.
- [83:38]
Alan Rosenstein
God, this is. We live in the dumbest of possible timelines. Yeah. So we're recording this on Monday the 15th. And earlier today the New York Times reported that the, the White House, the administration, Trump himself are saying that there is a framework in place for ByteDance to sell off TikTok to a US entity and that, that Trump is going to talk to President Chinese President Xi Jinping later this week and they're going to, they're going to something. I don't know what's going to happen. And so it's all very exciting. Maybe the TikTok saga will be over. I just think this continues to be a under reported story because the sheer rule of law violation that we've seen here is just, continues to be completely breathtaking. I mean, Congress, in an overwhelming bipartisan manner, passed the TikTok divestment or ban law last year. The Supreme Court ni. No, upheld it and then it just, just didn't go anywhere. Right. And you know, I've talked to a lot of journalists about this over the last year and this sort of the main message I try to, to put forward is that it's not that I think that the TikTok story is like the biggest rule of law issue in the United States today. I think whatever insane Reichstag adjacent speech that Vice President Vance just made about, about, you know, putting George Soros in jail is like, you know, an example of the bigger rule of law problems facing our nation. But for just the clarity of demonstrating the imperial, the Trump administration's imperial conception of itself, there's nothing as clean right as the TikTok non enforcement. And you know, I think that even if the result of this is that there is, that there is a deal, and I should also say I'm not at all convinced that there's a deal. Right. This has vaporware all over and there might be a deal. I'm not putting it past it, but given how many times in previous trade negotiations, and this is essentially part of a trade negotiation, Trump has announced a deal and there is no deal. Or you go to the counterparties and the Japanese are like, I have no idea what you're talking about. This bears no relationship to anything we've discussed that's happened so many times that until I see, you know, a legally executed agreement signed preferably in blood and triplicate, like I'm not going to believe that there's an actual deal here. But even if there is a deal, even if the result is that ByteDance divests of TikTok, which would be a good result, it is the what was the result that everyone ultimately wanted. That doesn't, I think, in any way make up for the nine months of just real law breaking on Trump's part. But also, and this, I think, is the undercovered part on the part of the company. It's like I continue to just be flabbergasted that the literally, literally biggest companies in the world with the most experienced and sophisticated lawyers and legal counsels agreed to go along with nearly a trillion dollars of liability each on the sort of nonsense, say so of Trump. And as we saw a month ago or two months ago, whenever the Bondi letters were FOIAed and we wrote about that for a lot of on this, the stupidest possible legal rationales. And, you know, we talk a lot about civil society and how civil society is a bulwark against authoritarianism, which it 100% is. And people think about, oh, journalists and nonprofits and academics, and it's all true. That's civil society. By far the most important part of civil society, orders of magnitude more important than all of us chattering nonprofit types is business, right? There's no question that that is vastly more important, important than everything else put together just because of the size of it relative to, you know, the other productive forces in society. And to just see these big companies, you know, fold, and not just fold, but put themselves in a position of blackmail with the Trump administration. It's just been a real bummer. Like that, that is my tech, that is my technical law professor summary. It's just a big, big, big bummer. And, you know, like, I'm not a journalist, right? Like, I, I can scream about this on lawfare in the Atlantic and, you know, whatever. What I really want is I need some journalist, like a real journalist, a real investigative journalist to go and, like, do the work of getting sources inside these companies to explain what the hell the logic was, right? Because, like, what I desperately want to know, right, is, you know, did the Apple general counsel, did he or she, did they sign off on this in February when Apple put TikTok back on the App Store? Or did they go to Tim Cook and say, dude, we can't do this, like, it's just a link legal, like these Trump, Trump administration assurances are not worth the toilet paper they're printed on. And Tim Cook went, yeah, I get that. But I am exercising my, you know, Article two, Tim Cook discretion. Right. And making a business decision because I want to help the Trump administration. I think that's best for our shareholders. That's. I want to know those answers because I think that is actually a really important data point for whether our democracy will survive in the next few years.
- [88:27]
Scott R. Anderson
Yeah. Quinta, I'm curious, you're curious about your thoughts on, like, the incentive that might have informed this. And like, more fundamentally, I'm kind of curious whether you have the same sort of, sort of gut skeptical reaction. We just talked in our last topic about prosecutorial discretion, grand jury nullification, petite jury nullification to some extent, or whatever you want to call it. We do see institutions exercising discretion. Prosecutorial discretion is part of federal law, although this is a little unusual. And you do have the take care clause that's supposed to counterbalance that. Is it as alarming as Alan finds it? Is it maybe closer to what Congress intended, even if there is like, like tension with the law? I'm curious about where you fall on this.
- [89:07]
Quinta Jurassic
I would say I'm pretty alarmed. At first I was in the category of like, eh, whatever, who cares? But as this goes on, I think, Alan, to your point, it really does seem like it's not only an example of the sort of conception of sort of imperial executive power that the administration has, but the willingness of Congress and Republicans in Congress to go along with it and as you say, the willingness of the business community to go along with it. And in that respect, I think that the fact that all of these companies sort of shrugged and said, yeah, okay, at the beginning, as you say, Ellen, was really a warning sign because I had certainly been looking at that and saying, their general counsel's office will never let them do this kind of thing. And like, no, wow, do I feel like a dummy.
- [89:54]
Alan Rosenstein
Even at the Yield Law School, where I suspect a lot of these lawyers went, you know, you've learned to read a statute at some point, right?
- [90:01]
Quinta Jurassic
Yeah. So, I mean, it was genuinely. I agree that it is disturbing and sort of goes along with this argument about the sort of personalist model of power that this administration is wielding. I think I agree with you that it goes directly to this question of sort of why is business, why is capital not pushing back more? Right. And I think you see the same thing in terms of the sort of flirting with the idea of removing Jerome Powell, the idea of removing Lisa Cook at the Fed. Right. I would have expected a lot more pushback. I think, you know, the state is supposed to be the executive committee of the bourgeoisie. Where are the bourgeoisie? Right. And in all seriousness. Right, exactly. In all seriousness, I do think that one thing that I have found helpful in thinking this through is, I am sorry to say, the Ernst Frankl's Dual State.
- [90:57]
Alan Rosenstein
I was worried. I'm sorry, I was worried. I was literally, honestly, when you were saying, like, why doesn't it go? Why doesn't capital send up? And I'm like, they did in Germany. Like, that was my first thought.
- [91:07]
Quinta Jurassic
No, well, exactly. So what's interesting. So what's interesting, and I will say I have not actually read the Dual State. This is from a very interesting article by William Shoyerman, who is a political theorist, scientist and studies Carl Schmitt. But so what Scheuerman argues is that basically in the Dual State, Frankl is a lawyer in Nazi Germany in the early years, early 30s, and is sort of trying to navigate the legal system. And he argues that there is a dual state. There's the prerogative state, which is sort of when the state swoops in and does whatever it wants, and there's the normative state, which runs more or less, as we today would recognize, a lot legal system operating. Frankl's argument is basically, well, you need to have the normative state along with a prerogative state to bring business along. Basically, business depends on there being some kind of rational legal structure to which you can appeal to resolve disputes, essentially. And that's Frankl's view. He's writing in the earlier period, is my understanding. Obviously that did not end up going so hot for business. And the Scheuerman article, what I found interesting about it is that it pulls in a debate that Frankl had with a friend of his, Franz Newman, who was essentially arguing that you actually don't need the normative state and we shouldn't understand it as such, because at this point, the development of German capitalism was such that there was not actually a need for a sort of rational legal structure to resolve disputes. That that capital had become so much in the form of monopolies that they kind of felt like, this is bad, but we can deal with Hitler, we can make deals, that this idea of governance by personalist deal making was actually something that they were okay with until, of course, it all fell apart. And so I feel like when I read that article, the light bulb kind of went off over my head. You can make an argument that, that these companies that are dealing with Trump, Apple, Oracle, Google, they are big enough and feel powerful enough that they kind of look at him and see them as one of their own and say, we can deal with this guy. Right. It's those smaller businesses, like the people who aren't going to be able to run their yarn store anymore because of tariffs. They're the people who's really hurt by it. But if you're Tim Cook, you just go and cozy up and you're fine. Fine right up until the moment where you're not fine. And so I will say.
- [93:45]
Alan Rosenstein
And then you're really not.
- [93:46]
Quinta Jurassic
And then you're really right.
- [93:46]
Scott R. Anderson
Well, exactly.
- [93:50]
Alan Rosenstein
The Hemingway principle applies here.
- [93:52]
Shane Harris
Yeah.
- [93:52]
Alan Rosenstein
Gradually and then all at once.
- [93:54]
Quinta Jurassic
Right, right, exactly. But I do think that helped me kind of conceptualize what's going on here.
- [93:58]
Scott R. Anderson
I think there's a lot very compelling element of that framework, like kind of state of exception, state of normalcy and existing side by side. The part that I think is unique about TikTok and the reason we haven't seen yet this model extend broadly yet now maybe it could, and that's problematic. And there's always the slippery slope concern. TikTok strikes me as uniquely disadvantaged for a couple of reasons to being effectively enforced from the outset. The TikTok law. I should say the number one a reason is just a product of our separation of powers and the way Congress had acted, like up to this administration, which is that Congress has just kind of leaned on good faith enforcement under the take care clause by the executive branch of the law and just assumed that that was mostly going to happen because it mostly did. Up until this administration, there have been exceptions. There have been prior administrations that haven't enforced laws the way they're written for a variety of reasons, usually because they have some constitutional argument. In this case, the constitutional argument is borderline farcical and nonsensical, other than the prosecutorial discretion element, which itself is a real stretch. But I don't know if it's a category of order greater than that. But the reliance on that in this case, that, okay, the executive branch didn't come through. Normally the executive branch is hesitant to do that because they're worried Congress is going to come back and slap them, especially for a law that Congress just passed. That's not going to happen here for at least two reasons. One is that this particular Congress is fairly strongly controlled by Trump's allies, although on very narrow margins. Many of them don't agree with him on his China posture. So I'm not sure that's actually like the big driver. I think a big driver is the fact that Congress completely 180 on this law after they enacted it. And that is a real, real thing that I'm sure entered into the minds of these companies. As I thought about it, my suspicion of their calculus is going in saying yes, this technically could leave us on the hook for huge sums of money, but A, this administration won't enforce it for four years or however long they give us but up to four years. B, any future administration that tries to do it will be deep sixing the American economy because we are too big to fail. There's no chance they'll do it. And three, Congress is going to come back because they're probably not organized enough. It's not clear they actually want this law to be enforced the way they wrote it six months ago because they have publicly said they don't want to enforce. They wrote it six months ago and even if they could, they wouldn't come back and slap us with fines the executive branch couldn't ignore because of reason. B, we're too big to fail and it's going to come back, come back to bite us. So they knew they're going to come out of this and Congress and whatever future administration wants to enforce this law is going to have to play ball with them, is going to head to Hedge. Maybe they suffer some losses, but not the real scale they're looking at.
- [96:30]
Alan Rosenstein
But Scott, don't you understand the real tragedy is that I look like an asshole after all of this and I don't find I'm not comfortable in that position.
- [96:39]
Scott R. Anderson
Scott, you just have great faith in the rule of law and perhaps that is all of our original sin on this podcast as so many others. Well folks, that's all the time we have to talk about these topics today. But this would not be Rational Security if we did not leave you with some object lessons to ponder over in the week or weeks or months to come until you hear from today's guests again. Shane, I'll start with you.
- [97:01]
Shane Harris
Yes, my object lesson actually it's very happy, it's fun. It has nothing at all to do with national security. But I'm going to recommend Shocker, a TV show since I'm known for recommending good hearted online entertainment, unlike the bad shit that you get on Discord. But it's an HBO show that is just finished its third season, so if you haven't watched it, go back and watch it. It's called Somebody Somewhere, which is a terrific show that it's hard to categorize exactly what it's about, but it's basically about a Bunch of like quasi middle aged adults like just trying to do life and a small town in Kansas in the Midwest. It is funny, it is heartwarming. It is definitely worth your time. And it is on my mind because one of the main actors in the show, a guy named Jeff Hiller, who is a friend of mine, just won an Emmy last night for his performance in the show. And his story is just a tremendous one too. Jeff. You may, if you saw a picture of him, he is unmistakable looking and you've probably seen him profiled in the New York Times and a ton of places recently. But basically Jeff was a working actor. I mean, still is. But you know, for 20, 25 years was like cast as like, you know, waiter or like airline passenger. But is this kind of brilliant comic actor who's done a lot of stuff that's kind of more underground. Some of it I followed for the years and who kind of got cast finally in this very significant role and he won an Emmy for it. And it's just a fantastic story in its own right. But the show is great. If you haven't seen somebody somewhere, check it out. Three seasons on hbo and yeah, it's actually a balm in times like this because it really is about the power of friendship and community and perseverance that.
- [98:43]
Scott R. Anderson
I did not realize you knew him. And I actually, I looked him up and just remembered and I immediately recognized him from one of my favorite roles in all of television, which is the hotel clerk in 30 Rock and the episode where they go back for. I think it's. I can't remember. I think it's Tina Fey's high school reunion and describing the booby traps people have set around town to capture them. It's one of my favorite comic scenes for that entire show. It's amazing and the delivery is impeccable. So wonderful. That's great to hear. He is getting the credit he deserves. That's great.
- [99:08]
Shane Harris
Indeed.
- [99:08]
Scott R. Anderson
Wonderful. Ben, what do you have for us? Bring us home.
- [99:10]
Benjamin Wittes
So I did my column yesterday on the circumstances in which Elizabeth Zerkoff was set free from captivity by an Iranian proxy militia. And I found myself in the very unusual situation of having to give unironic and unqualified praise to Donald Trump and a change in policy vis a vis hostages and vis a vis Khataib Hezbollah, the militia in question that his administration had effectuated. I don't have more to say on the subject than I said in my column, but my object lesson is twofold. One is I want to direct people to the column because my proposal propensity for praise of the Trump administration being minimal. I do want to flag it when I do it that this was not backhanded. And I actually feel very grateful for this rethinking. But I also want to flag the individual who I think is behind it because he's somebody who, who, you know, again, my admiration for in this context is, as Barack Obama might say, a little bit improbable. He's a fellow named Adam Bowler, who's Trump's hostage negotiator guy, special envoy, and he appears to be a kind of tech bro, businessman type. He's been very effective and. And I would love to say something ironic about how even a stop clock is right twice a day. I'm not going to do that. I think they rethought some things with respect to US and non US Elizabeth is not a US national hostage is held abroad. And they've gotten some things done, including getting Elizabeth back without giving up anything in response. Just basically communicating to the Iraqi government that they were going to rain holy hell down on them if they didn't get this done and making her capture more of a liability than an asset. And so I want to flag that. As the saying goes, sometimes the worst person, you know, makes a great point. And I actually think Adam Buller may be the real deal. And in any event, he and Donald Trump did really good work in this area. And I want to acknowledge that.
- [101:56]
Shane Harris
Just as a PS to that, Scott mentioned the Aspen Security Forum. Bowler, I think, was the only administration official or one of two who actually spoke, was allowed to speak because people remember that the military in particular canceled all of the appearances by senior officers. And Kaitlan Collins from CNN interviewed him. And, and you know, you would not, I think, if you didn't know he worked for the Trump administration, I don't think that you would obviously detect him as some kind of MAGA bro or something like that. He was a very level conversation and it seemed like he took his job really seriously and was trying to do the best job that he could. But it was interesting that they let him speak. Or maybe he just said, I'm gonna go speak anyway, but that was notable.
- [102:41]
Scott R. Anderson
Absolutely, absolutely. And I'll say this is one of the very few third rails we have left of American foreign policy where there's genuine bipartisan consensus and a fair amount of cooperation across administrations on this particular issue set. And everybody takes it very seriously. I think it really personally affects a lot of the senior officials involved. You ever hear Jake Sullivan talk about this? And his work on some of these cases. He talks about it all the time as the thing that personally affected him the most. And I think in a very genuine way, it is really, really interesting to see it come through. And it's a good thing the Trump administration followed through on this and the.
- [103:13]
Benjamin Wittes
Biden administration had a lot of very slow, solid accomplishments in the hostage repatriation area. I don't mean to rag on their record in this space at all. They did not do much for Elizabeth Zerkoff, who is not an American and whom they regarded as not really our problem. And Bowler took a very different view of it and he got it done.
- [103:38]
Scott R. Anderson
Yeah. Thanks, Ben and Shane. Let's also now turn to Alan and Quinta to hear about their object lessons. Lessons. Well, well, well. Look who came crawling back for object lessons. This bit will never get old. Alan, what do you have for us this week?
- [103:54]
Alan Rosenstein
Oh, my God. So I have, I have a book recommendation. It's called the Tainted cup by Robert Jackson Bennett.
- [104:01]
Scott R. Anderson
Ooh.
- [104:02]
Alan Rosenstein
Yeah. I, I wish this. I could be like, this is like some, like, crazy indie hip find. But it did win the Hugo award this year, so I guess it's on people's radar. It is, as far as I can tell, a kind of Sherlock Holmes esque murder mystery set in kind of classic high fantasy. I'm only like 100 pages in, so I'm not giving any spoilers, but the premise is that there's this, like, empire and there's this border on the ocean. It has these big sea walls and every once in a while a giant, what it calls leviathan comes and, like, tries to crash through the sea walls. And the entire society is built around protecting itself from these leviathans, which I keep calling Kaiju in my head because all I can think of is Pacific Rim, which I maintain is a fabulous movie. But that's a different object lesson. I can't just say Pacific Rim is a perfect movie. Like, it runs that line.
- [104:51]
Scott R. Anderson
You just said it's a different object.
- [104:52]
Alan Rosenstein
It doesn't matter. I just, anytime I can plug Pacific Rim, I will plug it as riding perfectly on the knife's edge between super cool and super stupid. And it just stays super cool the whole time anyway. So, like, it's a kind of a Sherlock Holmes high fantasy with Pacific Rim Kaiju elements. I don't know what the Jaeger equivalent is yet, if there will be a giant magical robot. Anyway, it's really good. I really enjoy science fiction and fantasy, but I have a problem where it also needs to be written Well, I, I cannot. I wish I could turn my brain off and not care about writing style and just enjoy world building, but I can't. I need good writing and this is really good writing. So I'm only 100 pages in. There's already a sequel which is out, which I'm delighted about about. My wife got me into this. So now we, we, we lie in bed at night and I read this on my Kindle and she reads the next book on her Kindle and the whole thing is extremely middle aged. So yeah, that's my, that's my recommendation. The Tainted cup by Robert Jackson Bennett. Shadow of the Leviathan, book one.
- [105:50]
Scott R. Anderson
Ooh, wonderful. Shadow of the. Oh, you got me with that series title.
- [105:53]
Quinta Jurassic
You know it's good when there's a.
- [105:54]
Scott R. Anderson
Very original title, Shadow of the Whatevs. It's fine, you got me.
- [105:58]
Alan Rosenstein
Shadow of the Kaiju is just how I think about it in my head.
- [106:01]
Scott R. Anderson
Wonderful. Well, for my object lesson this week, I also have a book recommendation that I've been enjoying. It's a book that I've had on my bookstand and I keep picking up reading, really enjoying a chapter of it and setting down because it's kind of like little vignettes. That's Samantha Harvey's book Orbital. That one, I think either one or was nominated for the Booker Prize. I believe it won. But is a really interesting book about space and kind of about reflections on the experience of people traveling in space. Space, which if you're a little bit of a space sci fi nerd, is very interesting. Although it's not super sci fi, I wouldn't say it's much more kind of reflective and interesting and very short and approachable and a delightful nighttime read. And I've really been enjoying it. So I'll recommend Orbital by Samantha Harvey and Quinta. Why don't you bring us home? What do you have for us this week?
- [106:41]
Quinta Jurassic
I also have a book. In this case it is an audiobook or at least a book that I consumed as an audiobook. But I imagine the written version is pretty good too because it's the same words just on a page. It is Empire of AI by Karen Howe and is a reported book about OpenAI. I was kind of skeptical at first. Often I listened to audiobooks that are about like amusing shenanigans of people doing things badly because it's kind of fun to have in the background and you don't have to pay. Super close.
- [107:13]
Scott R. Anderson
The general Coen brothers oeuvre.
- [107:14]
Quinta Jurassic
Well, it's sort of like up There goes Adam Newman again, again losing a million dollars. But this I thought was both interesting in terms of how's original reporting on the workings of OpenAI, which is a pretty opaque company despite the name, and how she connects it to the much larger picture of the development of AI research over time. How the extraordinary amounts of resources required to conduct that research has sort of moved it from being an academic enterprise into something that is more and more in the grip of a very companies and what that looks like not only in terms of how it shapes AI research, but how it shapes the lives of people around the globe who are affected by that. So she travels to Chile and talks to people who were lobbying against Google building a data center in their town because they were concerned that it was going to suck up water. She talks to content moderators who are working on contract in Colombia and West Africa. It's just very well done in terms of situating this kind of dramatic corporate story in the broader context of the research and of the sort of outward ripple effects of the work. So I was a big fan. The book is very soothingly read, I found. So nice to listen to while you're puttering around, cleaning up before going to bed, that kind of thing. Highly recommend.
- [108:42]
Scott R. Anderson
Wonderful recommendation. Well folks, that is all we have for this very special episode of Rational Security. But we will end with a very special announcement. As I mentioned at the top of this episode, this is Lawfare's 15th year of existence. We are celebrating that 15th year this Friday, September 19th in Washington D.C. with a live event. There are tickets available online. We'll have a link in the show notes. We would love for you to come and join us, have some refreshments, hear from a few of us in person, a few of us remotely, including I think the few of us currently on this web stream that you've heard from today on this podcast. It'd be great to meet you, great to chat with you, great to celebrate everything that Lawfare has done over the last 15 years, everything we have going on into the near future. It's a wonderful organization. It has been a very pleasant seven or eight years I have spent here and I've enjoyed every minute of it and I hope to enjoy many more, hopefully with many of you there as well in our broader social network continuing to listen to us and read to us. So please come out if you can hop online, drop us a message if you're able to make it. Otherwise, that is the end of this week's episode. But remember, Rational Security is of course a production of Law, so be sure to visit lawfourmedia.org for our show page for links to past episodes for our written work and the written work of other Lawfare contributors, and for information on lawfair's other phenomenal podcast series. While you're at it, be sure to follow Lawfare on social media wherever you socialize your media, Be sure to leave a rating or review wherever you might be listening, and sign up to become a material supporter of Lawfare on Patreon for an ad free version of this podcast, among other special benefits. For more information, visit lawfaremedia.org support our audio engineer and producer this week was Noam Osband of Goat Rodeo, and our music, as always, was performed by Sophia Yan and we are once again edited by the wonderful Jen Patcha. On behalf of my guests Shane, Ben, Allen and Quinta, I am Scott R. Andersen and we will talk to you next week. Until then, goodbye.
- [110:30]
Alan Rosenstein
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