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- [00:01]
Scott R. Andersen
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
Kevin Frazier
Whenever I need to send roses that are guaranteed to make someone's day, the only place I trust is 1-800-flowers.com with 1-800-flowers. My friends and family always receive stunning, high quality bouquets that they absolutely love. Right now, when you buy a dozen multicolored roses, 1-800-flowers will double your bouquet to two dozen roses. To claim this special double roses offer, go to 1-800-flowers.com acast that's 1-800-Flowers.com acast. We all belong outside. We're drawn to nature. Whether it's the recorded sounds of the ocean we doze off to or the succulents that adorn our homes, nature makes all of our lives, well, better. Despite all this, we often go about our busy lives removed from it. But the outdoors is clear, closer than we realize. With alltrails, you can discover trails nearby and explore confidently with offline maps and on trail navigation. Download the free app today.
- [01:36]
Scott R. Andersen
So Natalie, we are experiencing some technical difficulties which may be noticeable by the listener, but probably not. I think we are pretty good at ironing those out but I will throw out there. You know we have as a Lawfare policy a fairly generous for a small nonprofit meaning in the order of a couple hundred bucks technology subsidy for in office technology. We gotta get you sharpened. You're off camera now. Meaning we're have a lot of awkward interactions. We missed the eye rolls and the curled upper lip to respond to comments. If Alan was on we could barely do this podcast. But it's just us.
- [02:11]
Tyler McBrien
Still we need it now that we have some of Lawfare's top brass here. I've been meaning to ask how flexible this tech stipend is because a friend recently taught me some of the basics of DJing. And so now I'm in the market for a DJ controller and maybe there's a law for event I could DJ or I don't know, I feel like I can make the case.
- [02:30]
Natalie Orpen
I mean I think the first question though, Tyler, is before you even offer your services of advanced DJing, what's your name? You know sir, mix a lot. What are we going with here?
- [02:41]
Tyler McBrien
Such a good question. I don't know. Drop your suggestions in the comments.
- [02:46]
Scott R. Andersen
I will say in college I and a bunch of friends I was living with had a party where we all chose DJ names. And my DJ name was DJ Tanner from Full House. And so I just took a picture of the oldest sister from Full House and put it up there. So, you know, it's it I left.
- [03:01]
Natalie Orpen
This is a more fun version of the question of what was your aim username? Because those are just. Those are too. Too rough to rip out.
- [03:10]
Scott R. Andersen
Yeah.
- [03:10]
Tyler McBrien
Bacon lover 232. I'm proud. I will proudly tell you that.
- [03:14]
Scott R. Andersen
That's Bacon Lover. Really?
- [03:17]
Tyler McBrien
Yeah. And then I had. Later I had hello, goodbye. 2, 3, 2.
- [03:20]
Scott R. Andersen
How did you lock that? That one I feel like is gold. Hello, goodbye.
- [03:25]
Tyler McBrien
Yeah, it was. It was after a band with the.
- [03:27]
Scott R. Andersen
2, 3, 2.
- [03:29]
Tyler McBrien
Person to lock that down.
- [03:31]
Scott R. Andersen
Kevin, you want to pitch your DJ name?
- [03:33]
Natalie Orpen
Yeah, maybe I'd be the breakfast Taco boy. Something about breakfast tacos. I don't know. This is where I've become over reliant on AI is because now these sorts of tasks I would never even contemplate doing on my own. I do have some. Some quick takes from ChatGPT. All of them are pretty bad, honestly, but DJ Habeas drop us was okay.
- [03:58]
Tyler McBrien
Damn it. That's pretty good.
- [04:00]
Scott R. Andersen
It should be. Yeah. That's not terrible.
- [04:02]
Alan Rosenstein
Kevin Frazier, are you saying that all of your awesome dad jokes are coming from ChatGPT?
- [04:09]
Natalie Orpen
No, no, the dad jokes are all me. For better or for worse, foreign.
- [04:20]
Scott R. Andersen
And welcome back to Rational Security. I am your host, Scott R. Andersen. Thrilled to be back in our normal confines after a little bit of a on location recording last week. And thrilled to be back with you for the podcast where we invite you to join members of the lawfare team as we try to make sense of the week's biggest national security news stories. Joining me this week in all stars lineup, including Lawfare managing editor, Tyler McBrien. Tyler, thank you for coming back on the pod.
- [04:47]
Tyler McBrien
Thanks for having me. If I had my. My DJ controller, I would hit it. Hit the air horn right there.
- [04:53]
Scott R. Andersen
I got you. Don't worry, I'll do that for everyone. I have a unique sound effect for everybody just lined up. I don't. That's all I'm going to be able to do. And join us as well, from the great state of Texas. I assuming right now you've been on the road quite a bit lately. Kevin Frazier, senior editor at lawfare and the AI Innovation and Law fellow. I believe I had that right at the University Texas at Austin Law School. Kevin, you are not coated in sweat, which is amazing given your current location.
- [05:20]
Natalie Orpen
Howdy. Yeah, no, it's. I escaped the shower. That is the outside of any building here in Austin right now, but life is otherwise groovy in the land of breakfast times.
- [05:29]
Scott R. Andersen
I absolutely love Austin, but man, it is a soggy mess in the month of July and August. I don't know how you do it. I don't know how you do it. Good for you.
- [05:38]
Natalie Orpen
This might be my last rational security. We'll see if I survive for the next one.
- [05:42]
Scott R. Andersen
Just a hollow, hollowed out, sweaty husk of man until September and thrilled to be joined, as well as Lawfare's executive editor, Natalie Orpen. Natalie, thank you for coming back on the podcast.
- [05:52]
Alan Rosenstein
Well, thank you so much for having me.
- [05:54]
Scott R. Andersen
Well, I am thrilled to be joined by all of you as we have had a very eventful couple of weeks in the national security news space that we are catching upon by virtue of last week's special episode from Aspen. And we have a couple of big, serious stories that we need to tackle. Topic 1 for this week, feeding frenzy. The crisis in Gaza has reached a new and desperate stage. Months of a near total blockade on humanitarian assistance has created an imminent risk, if not a reality, of mass starvation among Gazan civilians. And it finally has the world, including President Donald Trump, taking notice and putting pressure on the Israeli government to change tack, including by threatening to recognize a Palestinian state. Now the Israeli government appears to be giving an inch, allowing what experts maintain is the bare minimum level of aid necessary to avoid famine into the country and even pursuing a few largely symbolic airlifts while allowing other states to do the but how meaningful is this shift and what could it mean for the trajectory of the broader conflict? Topic 2 hey, it beats an AI inaction plan. After weeks of anticipation, the Trump administration has finally released its AI action plan, and despite some serious reservations of many quarters about its handling of quote, unquote, woke AI and select other culture war issues, the plan has, I think it's fair to say, generally been met with cautious optimism. But how should we really feel about the AI action plan and how significant is it and what does it tell us about the direction AI policy is headed under this administration? And topic three, please and no thank you. Earlier this month, the D.C. circuit upheld then Secretary of Defense Lloyd Austin's decision to nullify plea deals that several of the surviving 911 perpetrators had struck with those prosecuting them in the military commissions. How persuasive is the court's argument? And what does the decision mean for the future of those tribunals? So for our first topic, it has been a big couple of weeks in regard to the Gaza conflict, a topic that we are overdue to turn back on. Of course, we know after a few efforts at a ceasefire, successful ceasefire for a few months earlier this year, since March, the Netanyahu administration in Israel has imposed a near absolute blockade on humanitarian assistance coming into Gaza, severely constraining it. That includes food aid and assistance and other nutritional assistance. And we have over the past few weeks been reaching a point that we have been warned about by international agencies, by experts for a long time, which is that the limited supplies of food, limited input of food coming into Gaza under this new regime since March is pushing the civilian population there to the edge, if not into a state of famine. We are getting reports of many people, dozens of people, including children, dying essentially of malnutrition and starvation in Gaza. Pretty, pretty heartbreaking photos, particularly of kids coming out that are interestingly having a genuine psychological effect on a big part of the international community. I think it's safe to say that this is the most public pressure that we've seen the Netanyahu government be under kind of since the start of this conflict and that it appears to still be building, which is pretty exceptional. Including just in the last hour or two, just to kind of rehash what's been happening over the last few days or weeks, we've seen almost every European government, along with a lot of world governments, line up to say, a letter to the Netanyahu government to say, hey, we need to get more assistance into Gaza. The civilian population, they're starving is simply unacceptable. A lot of that is from states who have criticized Israel in other ways that Israeli government has brushed off pretty successfully, but includes a number of major global governments, including several that back them in their military operations against Iran. Last month, more or less. Remember, the G7 came out with a pretty supportive statement. It was pretty muted in its criticism, generally, overall, relatively supportive of what they ended up up doing. So those are states with which I think have more influence than maybe the Israeli government acknowledges to some extent that pressure has built. Now, though, we've seen both the French government, President Emmanuel Macron, and then just today, Prime Minister Keir Starmer of the United Kingdom. Both say they are looking at potentially recognizing a Palestinian state. Starmer specifically conditioning that possibility on the fact that if there is not a ceasefire and an end to the current conditions in Gaza by September, we're going to seriously explore it. Trump administration hasn't gone that far. But really, interestingly, the statement from Starmer came a day after President Trump was in the United Kingdom sitting down with Starmer, including to discuss this issue, at least it was came up in the Q and A and was one of a long list of issues that they were discussing, I think specifically raised by Starmer, as I recall. And Trump himself has come out and said, look, we need to do something about the starvation in Gaza. You know, he's not going to talk about recognition, obviously still a strong ally of the Israeli government, of the Netanyahu government in particular, but saying this has gone too far, this is not something that we can push this conflict into. And it's coming on the back of several months where really the Trump administration, the Netanyahu government have been in tension in a lot of areas over cease fire negotiations, over hostage negotiations, over posture towards the new Syrian government, where Israel and United States are very much in opposite camps in regards to their posture towards that new government to some extent over the Iran operations that they cooperated on. But that the Trump administration pressured the Netanyahu government to kind of restrain certain of its actions on including targeting Khamenei Supreme Leader Khamenei for potentially targeted killing. It's all mounting to something that has having a big effect internationally in the media. You can see it. Gaza is back on the front pages for the first time in weeks, months probably at this point. And it is all over the front pages. A lot of major publications, at least here in the United States, but a couple international ones, I checked as well. And we're seeing it in really unexpected corners. Most notably, just in the last hour, I got a news alert that Representative Marjorie Taylor Greene, somebody who has, I think openly moved for sanctions against other members of the House for criticizing Israeli actions in Gaza at different points over the last two years, come out and said, yes, Israel has a right to defend itself. Yes, that means targeting Hamas and we shouldn't ignore Hamas's role in all this. But starvation can't be the answer and we have to keep that from happening in Gaza. It's kind of an amazing political turnaround. I mean, that's like a big breaking point. And the fact that she's the tip of the spear of that, I don't think she's going to be the last one. We hear those sorts of murmurings from, from within the CAU. Tyler, I want to come to you first on this. Talk to me about how significant a moment this is for Gazans, for Israelis, for the trajectory of this conflict and for the US Role in it. I mean, it's got a lot of the optics of actually a kind of big moment with a lot of big political pressure behind it. But we've seen those before, both in this conflict and other conflicts. Is there something different this time, or is it too soon to say whether this is actually a major shift in trajectory or just a bump in what is likely to be a return to the status quo?
- [12:44]
Tyler McBrien
I do think it's too early to say the ultimate upshot of this moment. The moment does feel different. Like you said, there does feel like there's a shift in the discourse in the media, certainly in the Trump administration, certainly among certain European leaders. I think several things are coming to a head. One is that the famine has reached this ultimate crisis point, and also the lines that the Israeli government has trotted out as justifications for continuing to restrict aid are just completely losing purchase. There was, I think, about a week ago, the New York Times reported that USAID found that the sort of the main line that the Israeli government puts out, which is that Hamas steals the aid. They found no evidence of that. And Then only on July 26, the New York Times reported that Israeli military officials themselves said that there was no evidence of this either, or at such a scale that would justify restricting aid. The images are just streaming out of starving children, which are impossible to ignore. Even, you know, Trump said a statement something like, you can't fake that. And then, I think, coupled with several statements from members of Netanyahu's cabinet, Israeli ministers. There was one statement from the Israeli Heritage Minister, Amichai Eliyahu, who said the government is racing ahead for Gaza to be wiped out. He said all of Gaza will be Jewish. He's calling for massive resettlement or ethnic cleansing, depending on how you look at it. The Minister of National Security, Itamar Ben gvir, also said recently in a tweet, it was a series of lines. Complete halt of humanitarian aid, total occupation of the Strip, total destruction of Hamas, encouragement of migration, settlement. This is not the alternative path, et cetera. This is the. He said, Mr. Prime Minister, give the order. So for those statements to be happening in parallel with all of these images coming out of the Gaza of starving children, starving civilians, it just seems like it all came to a head and it just has become undeniable, even for some people who have been denying it for so long. And then I just wanted to put out there this. I think there's this tweet that people have been circulating a lot from October 25, 2023 that seemed pretty prescient that it seems like we're reaching this moment. It was from the novelist Omar El Akkad, who said, one day, when it's safe, when there's no personal downside to calling a thing what it is, when it's too late to hold anyone accountable, everyone will have always been against this. And I think you're starting to see some figures in the media sort of retconning or I think laundering, trying to launder the reputation for having denied the famine for so long. But to your initial question of whether this moment, which does feel like a moment, whether it will lead to change, we've seen sort of the bare minimum of pausing in the fighting with airdrops of aid and food from these Israeli government, which is better than nothing. But whether we'll see more than that, whether it will stop what some of these ministers hope will happen, which is complete occupation of the Strip, I think remains to be seen. We've seen some moments like this since October 7th where it seemed like there was room for a ceasefire or at least to allow humanitarian aid to go in. But we wouldn't be at this point if those moments had actually been successful.
- [16:03]
Scott R. Andersen
Yeah. Your point about the reporting we've got from the Times on that question of UN food and other aid being stolen is really notable. And it really jumped out at me for two reasons that I think may not show themselves on the face of the article, but it really reveals two sort of notable things to me. One, that fact, that claim, which has been advanced by the Israelis and the Israeli government on a lot of different fronts, is particularly significant for lawyers because it is a big part of the legal justification that they have offered for why they are allowed to restrict assistance into Gaza. I've had conversations with Israeli government lawyers and military lawyers about this, and this was a big part of their argument to say, here's why we're allowed to restrict and contain things, because we have to be able to pursue military necessity in restraining Hamas. Hamas obviously is an enemy and poses a big problem for us in that we are allowed to do that even if there is collateral damage to civilians under the international humanitarian law. You can quibble with the law on that. And in particular, I always quibble with how you evaluate military necessity. And the actual metrics of how you weigh these things. I think is actually at the root of a lot of the more problematic conclusions that the Israeli government has concluded in this conflict. In that regard, at least from my perspective, as I've talked about on this podcast lots of times. But it's interesting to see it so clearly have been rebuked and have such a limited factual basis. I don't put that on the government lawyers. To be clear, the Israeli government lawyers often operate on facts given to them, like any government lawyer, by policy clients. But when policy clients know that this isn't actually happening, you're relying on this. That really, really is a problem and is a problem that those lawyers hopefully are raising back saying, look, we've been making these arguments based on this predicated facts, and now we're finding out that people, your people are telling you that's not true. And perhaps more importantly is the sourcing of that story. It came from two Israeli military officials, and then two Israeli government officials knocks who they are. They were off the record, presumably not being identified. The Times clearly was able to corroborate this with multiple people before they came forward with it. Doesn't mean there isn't inaccuracies in there or some spin. There can always be in any sort of story. But it's really telling when the security apparatus is breaking around this, because this appears to have been a status quo that's been in place since March. I mean, this story is reporting that in March you had policy people coming to the Netanyahu government saying this actually isn't happening and we shouldn't be pretending like it's happening. There's not actually a lot of reason to think that it's going to happen less or net, be less effective. If we shift to the Gaza Humanitarian foundation that's been somewhat ineffectively handling humanitarian assistance in Gaza since March, and those arguments appear to have been ignored. These people could have come forward with that at any point, but they're coming forward now, I think, because the clearly internal disagreement within the Israeli government, Israeli military battle, protest situations, at least this one situation is beginning to break out to the open. That's actually a big deal. And it's a problem for Netanyahu in particular domestically, I think. Combine that with the fact that you're seeing Israeli NGOs begin to use the genocide label, just like Marjorie Taylor Greene did to describe what's happening in Gaza. A big red line for a lot of Israelis, but one that they're moving towards compared to polling showing that most Israelis support a ceasefire and return of hostages, like it's a sign of the political terrain under Netanyahu, I think shifting more than we might expect. Natalie, I want to come to you on this for a little bit more of the international perspective here. A really notable development we've seen in the last week. I think they're both in the last week Is France and the UK both saying they may seriously consider recognition of a Palestinian state? I write a lot about recognition. I will say that that can mean a lot of different things, and it doesn't necessarily mean a huge change in the legal relationship, although presumably entails some chained legal relationships. But it's a big, big symbolic move and something Israelis have been really afraid of. And presumably UK and France taking this move will provide a lot of COVID for smaller states to do a similar thing that might be inclined to do so otherwise, particularly in Europe, would be my guess. How does this sort of move. What's driving them to take this move at this point? And what does it tell us about the leverage European powers, particularly major European powers, might have over the situation or not have?
- [20:24]
Alan Rosenstein
Well, I think that it is a symbol of just needing to have some gesture that is a meaningful break with their traditional support for Israel, which has always been relatively tepid on the question of what Palestinians deserve, but has been not unqualified support for Israel, but always pretty unshakable support for Israel, maybe a little bit of quiet condemnation of some of its activities and some of its political choices and statements, but ultimately not taking major action or making major statements to disrupt the status quo, all while saying that the status quo is problematic. This is a very big gesture, even if it is more rhetorical than meaningful from a legal or policy sense. And I think it's. It is significant in, as you say, perhaps paving the way for other states to sort of hop on this bandwagon. I mean, we should note that the UK and France would not be the first states to recognize a Palestinian state. So this is just a new generation perhaps of states that would be doing so. And, you know, there are. I don't know that it's really worth going into what the legal implications may be in different fora. There are, of course, things that might look different at the UN and possibly in some of the international tribunals where Palestinians are involved or where states may want to bring cases against or on behalf of a Palestinian state. But at the moment, I think it is just a symbol in this broader conversation and perhaps an indication that this is a sort of turning point, as Tyler says. I think we really cannot tell right now whether the major difference that's happening in messaging and sort of posture on the world stage is actually going to have real effects for people who are starving in Gaza.
- [22:31]
Tyler McBrien
Yeah, I just wanted to add. I agree with all of that. And I just wanted to add, I think the word gesture was very apt there because as we all know there are actual levers of pressure that the us, The EU can put on the Israel, which is a suspension of military aid, limitations on military aid. The EU could, could suspend trade agreements. There are so many other levers that that could be pulled. But the fact that this is just sort of even just this gesture, this symbolic gesture, which is important, has taken so long to get to this point. It just, it, it's, it's kind of baffling to me.
- [23:06]
Alan Rosenstein
Yeah, I totally agree with that. And I just want to echo actually a piece that we published, I believe, yesterday, which will be Monday, from our editor in chief, Ben Wittes, who made the argument that we should stop talking about this issue and this conflict, at least with respect to what's happening on the humanitarian level in Gaza as a question of law and whether or not there's an argument on a legal basis for calling this genocide, because the fact of the matter is that it's wrong. And the focus should not be on whether there are legal arguments to be made for or against a label. The conversation should be about how do we get food to people. And I think that's just a really important step back that we should all be making. Although the legal questions are important in some sense, they're less important in this moment. And I think I agree with Ben that everyone should start talking and behaving accordingly.
- [24:08]
Natalie Orpen
I'm curious in terms of this being a pivot point or a potential pivot point. Natalie and Tyler, what have you been reading or seeing with respect to some of the key regional players in the Gulf and the Middle east about how they're responding to this episode?
- [24:24]
Tyler McBrien
I'd actually be curious, Scott, your view. I know you keep a closer watch on some of the Gulf states. Iran, I'm not sure if, given Syria's current state, I'm not sure if they're in a position to respond in any major way, but. Yeah, Scott, I'd be curious your take as well.
- [24:41]
Scott R. Andersen
Look, the major actors in this particular context in question really are the Gulf states and then to some extent Egypt and Jordan as kind of the traditional bearers of the Palestinian cause, although it frankly hasn't been that way for the last several decades, really on any other hass. But obviously the Jordanians and the Egyptians are much more proximate and are directly involved in Palestinian cause, Palestinian issues and Israeli responses because of their situations in relation to Gaza and the west bank, they've always been critical of what's happening in Gaza. This isn't new, I think, as have the Gulf states And in particular in regards to the humanitarian costs of it. I strongly suspect that criticism has not gone away and is being more dug in. And I should say they have been maybe a little bit more not quiet in their rhetoric necessarily, but there have been periods earlier in the conflict where there was a little bit more staid criticism of clear Israeli military response against an action against Hamas. Then my mind, one of my criticisms from early on is that it's not clear to me that after October 7, the Israeli government couldn't have launched a very targeted military campaign against Hamas that actually would have had a fair amount of regional support among Arab states and importantly kept up the trajectory, which now appears to have been perhaps permanently and I think likely for a very extended period, derailed towards normalization that we saw reflected the Abraham Accords. Instead, Israeli officials chose this very aggressive path that had big civilian consequences and casualties. There are strategic reasons you can argue in favor of that approach, including the extent to which Hamas really had dug into Gaza. But it still was a choice and it did, you know, perhaps significantly and permanently cripple what had been a trajectory towards a better relationship with a lot of the bigger regions. I'm not sure that's coming back. Even if you get closer to a ceasefire in the near term. I could be wrong on that. I've heard other, including some pretty senior Middle east officials this last few weeks, I'm sorry, US Officials who work on Middle east issues and have worked in Middle east issues saying, no, we really think once we get a ceasefire in Gaza, the Abraham accordions will be back on track. And that might be. But to get there, you have to find some solution for the Palestinians, for the Gazans, that does not raise the ire of the people on the street in these countries, in these governments. And right now, you're nowhere close to that. And even if you get a ceasefire, you're not going to be anywhere close to that. There's still going to be a lot of regular coverage, sustained coverage of the suffering of Gazans, as there hopefully should be. And it's much more common, much more persistent in regional media than it is here in the United States that we see or in global media.
- [27:29]
Alan Rosenstein
Although it's worth saying that Israeli media is apparently not covering the starvation component as much as global media is. And that's why the. I think we mentioned earlier the recent announcement of two major human rights organizations, Israeli human rights organizations, calling this genocide is meaningful because that will be news in and of itself. But my understanding from reading is that the images, for example, that are having this profound effect elsewhere in the world and seem to be perhaps changing the tide. Which as a side note, that's something we've seen in the past, Right. You think back to the civil rights era in the United States. It was when those images of children being hosed down and bitten by dogs that it started to make a difference. Or the question of refugees being desperate and going across the sea to get to Europe. And there was that really haunting photo of the little Syrian boy on the beach who had died. It does, you know, query whether it's only in retrospect, as we construct a narrative of how these things develop, that that looks like a turning point. But. But perhaps it is. Perhaps it will make a difference.
- [28:45]
Tyler McBrien
Yeah. And just one point on those images, I mean, images, horrific images have been coming out of Gaza since, you know, almost the first week of the response to October 7th. But I think what's changing is kind of something I alluded to earlier, which is that the Israeli response to these images are just are not working anymore. I mean, there was the official sort of government response to the latest set of images of starving children and civilians in Gaza was that it's fake news, it's Hamas like generated images. And it's just those are just ringing as what they are, which are lies, I think, to some people who are skeptical over the past few years.
- [29:27]
Natalie Orpen
And just speaking from my vantage point as someone who's less attentive to the ins and outs of this particular conflict, I think for me this really crystallizes the fact that this is, and this is going to sound so obvious, but just worth restating such a one sided skirmish of just David versus Goliath. For all the reasons. I mean, a lot of AI scholars focus on the use of advanced weapons systems by Israel, for example, against Hamas as illustrative of that power differential. But to just see the powerlessness of so many residents standing against this mighty Israeli force, I think for me is one of the more powerful aspects of just entrenching that notion of a community that really doesn't have meaningful defense capabilities right now on a broad scale.
- [30:14]
Scott R. Andersen
And it's really worth noting the informational disparities, the narrative shaping your point about the counter narratives around this really breaking down a bit, I think is a good one. Tyler, important context for this is Donald Trump is one of those people who is motivated by pictures of suffering. General, we know this from past cases. Think of the serious strikes in 2018, where that was by most media accounts a deciding moment for him is deciding to go forward with is when someone and his staff brought him pictures of children that have been affected by a chemical weapons attack, I'm sure were devastating, doesn't mean the policy that resulted was a good one. But he is persuaded by that. He finds those cases sympathetic. The fact that that is happening here, not just that he's persuaded by those photos, because again, there have been horrible photos from this conflict since day one, as there are from any war. But the fact that somebody in his circle, or perhaps Keir Starmer or somebody who's a major interlocutor internationally, decided to raise this item up the agenda and actually put those pictures in front of the president and talk to him about them is really notable. And then at the GOP front, again, Marjorie Taylor Greene, that tweet she sent out where she used the word genocide in relation to what's happening in Gaza, which is. I don't think she meant that in the technical context, but it's obviously narrative that leans into the most critical framework. That was basically in response to tweets by another member of Congress, Randy Fine, where he said, essentially, there's no starvation happening, and if it is happening, it should happen until Hamas goes away. So I'm being actually fairly generous in paraphrasing. I think it was actually a little less sensitive than that. But the perception was the reporting perception of reporters covering this, is that she was trying to counter that narrative and say, like, no, actually starvation is actually happening. That's notable. That is like a level of acknowledgement of bad things happening that has been somewhat absent from parts of this conflict and is again, maybe a crack that will widen. But we do have to wait and see.
- [32:02]
Tyler McBrien
I think I'll just add one more thing. I think that now you've also seen a new counter narrative. I've seen some replies to these photos that, oh, it's actually a bit misleading because these children have other illnesses or diseases. And it's just if we're at that point, then it just. That seems like a losing counternarrative. And then I'll just say one other thing. I totally agree with you on Trump's susceptibility to images, especially in this case, I think was really telling with his statement, I believe, earlier this week, in which he said, I'm paraphrasing, but the images he's seeing on television of the children. And he said, you know, for someone who has popularized the term fake news and fake media, he said, you can't fake that. And so I think that was really, really. He's finally kind of accepting the reality of these images.
- [32:51]
Howie Mandel
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- [34:24]
Kevin Frazier
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Scott R. Andersen
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- [34:47]
Scott R. Andersen
It's on Prime. Well, speaking of misinformation and artificially generated images, among the many things that can come about by reason of artificial intelligence, we have a major update. Perhaps in a way one of, if not the biggest update in AI AI law and policy since the onset of this Trump 2.0 administration. The Trump administration. The last biggest thing I think it's very fair to say the Trump administration did is it rescinded what was probably the Biden administration's signature policy. This is the AI diffusion rule that kind of limited the global diffusion of AI and rescinded it, along with a number of other AI related policies that the Biden administration has adopted. Leaving a bit of a gap as to what exactly was happening in regards to AI policy. Now we have a 28 page action plan that lays out the three pillars of activities that are. I believe it is something like that of innovation, Infrastructure, Infrastructure, development. I want to say development, but I know it was an I word. Integration, infrastructure. Then international stuff is the third eye. Yeah, international policy and security are kind of the three pillars of this plan. Kevin, you have done a deep dive into this, including a great, great conversation on the new Scaling Laws podcast. You and our colleague Alan Rosenstein have kicked off under our flag in coordination with the wonderful people at the University of Texas at Austin. Talk to us about the plan. What are the big parts of it we should be aware of? What surprised you, what didn't surprise you, and where does it fit in on the spectrum of potential AI policies that we are all imagining here? From the most restrictive, you know, keep it in our yard with a high fence, to the most open ended, Share it, spread it around. How different is this from what the Biden administration was contemplating, other people have contemplated? And why is it that way?
- [36:43]
Natalie Orpen
Yeah, so this is certainly big AI news and it's been news we've been waiting for for at least 180 days. So on day one of the second Trump administration, we had this announcement of a new policy position on AI, which was, quote, the pursuit of AI dominance. And as part of that pursuit of AI dominance that included a rescission of much of the EOs that the Biden administration had set forth in its four year term. And much of the orientation of the Biden administration's AI related policies, at least early on, were far more oriented around what folks will call AI safety or responsible AI or ethical AI. Some combination of those words and adjectives was the characterization of a lot of those AI policies. And so the Trump administration showed us early on that it was intending to move to a much more aggressive posture with respect to AI innovation. In particular, how do we push American AI companies to the frontier of the technology? How do we compete with China in this domain? And how do we make sure that we are fostering adoption of AI not only in the government, but by the private sector as well. But for AI scholars, it was a long 180 days just waiting for this AI action plan to come about. And sure enough, they adhered to their deadline. And in the middle of July we got this 28 page document. And Scott, as you noted, we had our three pillars of innovation, infrastructure and international diplomacy and security. And to be honest, there was kind of something for everyone here, which led to a weird moment in AI policy where this has become a space of quite noted division. So if you go on X or even Blue sky right now, if you are thrown into the category of being a Doomer or an accelerationist, those are camps that hold very, very true to their values and hold very true to their other members. And it's been pretty competitive and contested in those spaces. And yet when this plan got announced, with some notable exceptions, there was a lot of positive reception. And I think the reason is because we saw that in those 28 pages there are 90 different policy recommendations. And not to be too flippant, but if you give 90 gifts or throw 90 different things at just about everyone in the AI community, there's something for everyone in this plan. But to the credit of the Trump administration, it was really illustrative of the fact that of the 10,000 comments they received in a request for information on the development of this AI action plan, they really did incorporate a number of suggestions from think tanks, researchers, different civil society orgs, and really showed that they had done their homework in this regard. So this really does set us up on a pivot though, because as much as there was something for everyone, there were still three principles undergirding this AI action plan. And those three principles are really focused on making sure that America is going to beat China in the so called AI race, making sure that the US economy is strong enough and capable of leaning into AI with respect to ensuring that there is workforce development in that domain and also clearing the path for AI infrastructure development. And then finally making sure we don't, for lack of a better phrase, screw ourselves by giving away a model to a bad actor who could unleash a bioweapon, or failing to protect our most sophisticated AI models from cyber attacks, for instance.
- [40:32]
Tyler McBrien
Well, first I'll just say Doomer and Accelerationist, both great DJ names.
- [40:38]
Natalie Orpen
There we go. There we go. You know, I resist being labeled as one or the other, but I do think DJ Doomer is pretty, pretty compelling. DJ Doomer with the boomers.
- [40:47]
Scott R. Andersen
It's pretty good.
- [40:48]
Natalie Orpen
I mean, I think you need to.
- [40:49]
Scott R. Andersen
Fight that rhyming instinct if you have. This is like the third rhyming DJ name we've gotten. This may be the origin of the dad joke reputation.
- [40:57]
Natalie Orpen
Exactly. If my dad jokes were by GPT, they probably be better.
- [41:02]
Tyler McBrien
Well, speaking of authorship, I'm curious if you have a sense of who within the Trump administration is driving AI policy. Who wrote this? If we're happily surprised, it's been incorporating a lot of seems like a very inclusive policy. To whom should we give credit?
- [41:20]
Natalie Orpen
So the listed authors are Michael Kratzios, David Sacks, and Marco Rubio. If you go behind the scenes and see what's been posted on Twitter, I think most folks would say that Dean Ball in particular had a heavy hand in the drafting of this AI action plan. And Dean is pretty widely regarded as one of the more deep and serious thinkers of AI policy and someone who is able to maintain strong relationships and connections with all of those different disparate AI communities. And so his ability to maintain those relationships despite the labels and despite the very hard entrenched views, I think had a very big role in making sure that these 90 policies weren't just just beat China, beat China, beat China repeated on the chalkboard 90 times, but were instead reflective of a number of serious concerns. And so that was probably one of the leading influences there. I will say that the submission of 10,000 comments from people who care deeply about AI also had an important role here. If you went to X or Blue sky right after the release of the AI action plan, it was pretty hilarious because each group that had submitted a comment was highlighting the particular provision that they thought they had the greatest influence on and then showing the verbatim text from their comment and being like, see, it was all us guys. Which is great. Which is showing that that there was some degree of consideration of those comments. But I also think it's a moment of realizing that we can no longer have a sort of should we or shouldn't we approach to AI development as things stand in the broader discourse around in particular the so called race with China and the need for leaning into AI with respect to economic development and growth. We've seemingly moved away from a debate around whether AI development is going to happen. Instead it's a question of how fast are we going to push on these different dials to accelerate AI progress and what safeguards or what speed limits are we going to maintain, all the while making sure we're not imposing any sort of actual walls to making sure AI progress occurs here in the States.
- [43:39]
Alan Rosenstein
So I have a sort of follow on question from that. The sarcastic one first is do you think that the administration used AI to create the AI Action plan and the instructions were Please make sure that all of the stakeholders who contributed something can figure out a way to highlight a provision. But my serious version of that question is I will not pretend to have read all 90 or even most of the 90 recommendations, but if there is this sort of horoscope component to it where everyone can find something they like, and as they're, you know, these stakeholders have had opposing views on things in the past, do you see tension currently between the proposals that are in there or the recommendations that are in there one to the other, or are they sufficiently high level and broad and horoscopy that they don't actually reveal what ultimately tensions are likely to exist?
- [44:41]
Natalie Orpen
Yeah, so first, I don't think they use AI to generate this one. I will withhold comment on other statements coming out of the administration on whether or not AI had a hand in drafting anything, on the cohesiveness of the plan itself. What this really comes down to is a question of prioritization and execution. If you have 90 different recommendations, you're not going to be able to do all of those all at once to the same degree of efficacy. And so which of these provisions the administration actually leans into and make sure comes about is going to give us the biggest sign of whether we do ultimately have some, some tensions as a result of these different policies. None of them are necessarily blatantly incongruous. But I will say just to pick two out, for example, there is a call within the plan for making sure there's more research into what's known as mechanistic interpretability. Essentially, how do we understand how these AI models work? And let's say that research uncovers something about, whoa, we really don't understand what we're doing. These systems are wildly unpredictable and perhaps they shouldn't ever be deployed in a military setting. That would directly conflict with some of the broader themes about making sure the latest AI systems get integrated into a national security context, for example. So we don't know the sort of second order effects of some of the research that's called for. Similarly, we don't see a ton of consideration for how to find the very narrow path through the fact that leaning into AI development and leaning into AI adoption will necessarily, and this is again one of those kind of consensus points, will necessarily lead to job displacement. And while the administration is careful and detailed in calling out a need for more reskilling programs and upskilling and retraining initiatives, it's unclear of whether that's going to be executed to the full degree or to the extent we need to make sure everyone still has access to meaningful employment opportunities in the age of AI. So there's a lot of tensions to resolve here. I'll also say that there's a lot of uncertainty among some of the most consequential decisions about the future of AI policy. So, Scott, you asked earlier what was sort of omitted here? One of the big things that we're all waiting for. Again, I guess AI policy is just a series of wait and see developments. What is the new rule, as you alluded to earlier, that replaces the Biden era diffusion rule? We've seen, you know, trade deals being reached and mega deals being reached with the UAE and the Saudis with respect to data centers. We haven't seen a new diffusion rule. And that's going to have huge consequences in terms of who can access which chips. We also had a sort of data sized IP hole in the middle of this AI action plan. So one of the core components of AI development is access to vast quantities of high quality data. A lot of that data is copyrighted and we don't see anything in the plan addressing that. Although in remarks covering the plan and President Trump sent a signal that he very much intends or supports the idea of allowing for fair use of copyrighted material for training AI models.
- [48:17]
Scott R. Andersen
You're getting at what was my kind of instinct on this when I read this? I am reminded of a moment that came early when I came over to Brookings and Lawfare out of government. So this was 2018, I think maybe even late 2017, when the Trump administration 1.0 released its national Security Strategy, which was actually like super reasonable document that said a lot of really, really smart things, including hitting on like the importance of international law to deal with maritime and outer space disputes and cyberspace disputes and the need for multilateral venues to resolve this stuff. And like it needed to pivot more towards China because at the time we were still kind of in a post G what not yet like looking at China and major power comps as the next big threat. Said some bad things about Russia that were pretty pressed in. You know, I didn't agree with all of it, but I was like, okay, there's a lot in here I like. There's a lot in here that I think a lot of people would like. And it certainly, if nothing else, no one would read this and think it's fundamentally unreasonable. With the exception of a couple of errant hits in that case the ICC and a few other things here you could say something about woke AI. A couple things that are clearly red meat to some population of people who wants to see you say something about it. And then that strategy just meant nothing. It was just completely worthless because there was no real drive behind. Was developed by a national security advisor who left pretty shortly thereafter along with senior advisors. At least Rubio seems to be hanging around for the time being to his credit, I suppose. But that doesn't mean that that could be passing too. We never really know the long short of it is these documents, these strategies only matter so much as people actually follow up on them. And to do that you actually have to have buy in and then you have to have capacity. And so much of this reads a policy that either lots of prior administrations could have enacted in part because it relies on government spending, government infrastructure, new affirmative programs, public benefits, particularly when we talk about retraining and job support. Not to mention a lot of targets that have been kind of undermined, like export controls. The Biden administration plans to dramatically expand export control enforcement offices. We know they're being cut now under the latest Trump plan. Not nearly as much as anything else. And I don't think Congress necessarily going to go along with that part of the plan. But you're not seeing the sort of growth that at least a lot of people thought you need if you're going to start using export controls for this dramatic new scope of purposes. And that's not just about AI. That's also about lots of other stuff we use export controls for now. So the long and short of it is I'm not sure why I buy this as actually being feasible. I guess I'm satisfied and I am assuaged that there are smart people who appear to have good ideas and reasonable ideas in the administration with access to the president like and Mark Rubio and these two other gentlemen, you know, presumably are in that hierarchy. Like Rubio probably is the only one with real access to the president. But the other two are at least feeding into Rubio and helping him figure out what to say. And he appears to listen because it made in this report. But it's all trade offs, it's all capacity. And like so many things in here are just so fundamentally in tension with this administration has already done. You think of the international stage as well. Like the tools for doing a lot of this stuff are highly degraded. Right. We don't have to go to foreign assistance plans. Our diplomacy has been taken a lot of real hits in the last few months and all throughout the government. This is such a plan that calls for a lot of governmental action at A period and under administration where they have actively hamstrung the government's infrastructural capacity. So I'm just not sure why to take this seriously. I guess my question for you is, I think you are maybe more of an optimist in regards to this than I am. What part should we take seriously? What is it clearly is implementable and which parts of this might. I have a point, although you can feel disagree with me that they only are implementable if the administration changes bigger aspects of the trajectory in which it's steering policy, which who knows if that's going to happen.
- [52:09]
Natalie Orpen
Yeah, I think to your point more generally, just to go back to that high level, so much of the AI discourse is woefully bound up in this idea of AGI, artificial general intelligence. Some breakthrough moment when AI can outperform humans on most tasks or outperform average humans on most tasks, depending on who you ask. You'll get an answer depending on which day of the week it is and whether they've had lunch. So this pursuit of a short term idea of realizing some crazy advance in AI that transforms society has given the false impression for so many people that AI policy in the next one to two years is all that matters. And that that is just so, so wrong. We know that the diffusion of any technology, even one that has spread as quickly as AI, is usually minimally a decades long affair. And so this sort of signaling document, as agreeable as it may be in many contexts, we need Congress to act if ultimately we're going to see a sort of clear approach and long term approach to winning AI or making the economy resilient to AI and making communities resilient to AI. We need far more stable policies because again come 2028, the next president could day one rescind all of these policies and rescind all associated executive orders. For me, the biggest provisions that warrant the most attention and hopefully public scrutiny and public support are all of those that are around AI talent development, both with respect to making the up and coming generations of Americans more ready to use and adjust to AI, as well as creating opportunities and pipelines for all of the communities that will need to build out this AI infrastructure. So we have a huge shortage of plumbers, we have a huge shortage of electricians, we have a huge shortage of engineers that are going to need to build out these data centers that are going to need to build out all of the new physical infrastructure that's required for AI development. One thing I'll flag that's Particularly important to watch from a lawfare perspective is the fact that a lot of the infrastructure plans called for here, a lot of the changes to federal land use in particular, is going to be hung up in litigation for who knows how long. I know that environmental groups are already really opposed to how the AI Action Plan tries to streamline and remove certain safeguards around the uses of federal lands that would otherwise implicate, for example, the Clean Air and the Clean Water Act. So from that execution standpoint, I'm not sure this is going to be the meaningful thing that sets the US On a new trajectory. I think the broader message, Scott, is that we have now firmly moved toward the direction of continuing this AI build out. And now, again, the question is just how many safeguards, how many speed bumps do we impose?
- [55:16]
Scott R. Andersen
Well, speaking of speed bumps, that brings us to our third topic. Towards the end of the Biden administration, we got wind of a major breakthrough, something that really had been in the offing, in a way, for several, several years at the military commissions at Guantanamo Bay. And that was a plea agreement between the prosecution and several of the remaining defendants in the 911 cases. These are cases over, of course, the 911 attacks, where several individuals have been detained and are being prosecuted in the military commissions for their involvement in those attacks. This plea deal would essentially have allowed them to avoid the death penalty in exchange for acknowledgment of culpability. Certain other conditions would have spent the rest of their life in detention, but avoided the death penalty. It was agreed to by the parties installed. Arguably, some degree of performance may or may not have begun. That becomes a point of contention, as we'll get to in just a second, when then Secretary of Defense Lloyd Austin said, hold on, wait a second, I'm not agreeing to these plea agreements and purported to rescind them, using his authority as kind of the ultimate convening authority, or not the convenience authority, the ultimate authority over these sorts of actions on behalf of the military commissions and the Defense Department. That decision came under a lot of criticism from policy perspective, but also from legal perspectives. People worried that it was going to end up throwing a major wrench in the ability to continue with those proceedings. Those issues were litigated through, and we saw a big decision on that from the D.C. circuit the week before last or so. Natalie, you of course, are a veteran of the military commission system on the defense side, so you follow developments there closely. Talk to us about this decision where it fits into the bigger trajectory of this case and the kind of military.
- [57:00]
Alan Rosenstein
Commissions altogether okay, well, so much to say. I will start with just talking about the posture by which it arrives at the D.C. circuit because it is important to know that the Military Commissions act that established the military commissions provided that commissions cases cannot be appealed to the D.C. circuit until after final judgment. This case came to the D.C. circuit on mandamus, which means that there is a very high standard by which the government has to prove that it is effectively indisputably entitled to immediate relief. Those aren't the precise legal terms, but that is the gist of it. For all sorts of reasons that for those who are actually interested in my rantings about this subject can read in an article that we will publish later this week by me. The standard for mandamus was not even remotely met here. And that is a threshold question of whether these two substantive questions about the validity of Austin's withdrawal from the guilty pleas should hold. There is this threshold question of whether that question should even be be before the D.C. circuit. One dissenting judge, Judge Wilkins, said that it should not. I strongly believe that it should not have been. I don't think they met the standard for Mandamus. I think perhaps the other thing focusing worth focusing on rather than the intricacies of the legal arguments about which I have much to say is the effect. So I wrote an article many months ago when Austin purported to withdraw from these deals in the first place on legally dubious grounds or lack of grounds because he didn't cite any authority. I wrote an article saying that the 911 case will never be resolved. This is not an exaggeration. I think it is very hard for people who have been very understandably not keeping tabs of what's been going on in the commissions to have lost track of that and to think that perhaps I am exaggerating and other people are exaggerating when they say that. And frankly, it's hard without getting too much in the weeds to explain why that is true. But I will venture a couple of tries. So just for where we are now, this case was initially brought in 2008. It was dismissed when the Obama administration tried to transfer the defendants to federal court to try them there. That failed. They were re indicted in the military commissions and they have been in pretrial proceedings ever since. They are litigating every possible possible thing that can be litigated. Because when you make up a legal system from scratch, there are a lot of questions about how it should work and what the procedure should be and basic things like whether some of the statutory crimes defined in the Military Commissions act are lawful in and of themselves. And in 2014, the D.C. circuit held that one of them was not. And it was in fact one of the most important charges that was available to prosecutors who were trying to charge defendants in the military commissions. So that's one thing. There are a million motions that are currently pending in the 911 case. Just to give some specifics. One matter that is pending with respect to some of the defendants is whether certain statements that the defendants made in approximately 2007 need to be suppressed because they were the product of torture. The judge has ruled in this motion with respect to one of the defendants that yes, it does need to be suppressed, which is a hugely important deal when you think about the prospects of actually trying people once, if ever, dubious, that they do this theoretically got to trial. I think that it's important to stress that although it seems very straightforward, because we have all become so accustomed to the idea that the worst of the worst terrorists were captured at Guantanamo, and the defense bar is just getting in the way of justice because everyone knows they did it. This is a legal system. They are entitled to a presumption of innocence. As I write in my article, everyone agreed to this premise that we can fight terrorism with the rule of law. And so a rule of law system was established. And the reason that they have not gone to trial is because the rule of law hasn't figured out what to do with them. And if and when they did get to trial, prosecutors would still have to prove their case. And I think people really underestimate how feasible that is, particularly because so much evidence is problematic because it was obtained through or in connection with torture, which is also a phenomenon people are aware of at this point, but I think not familiar with the legal implications of it. Another thing, just to emphasize the absurdity of what happens in the Commission is another pending matter before the court. Right now is briefing on the question of what does the national security privilege mean? When the prosecution wants to say in discovery, for example, we can't give you this information that you would otherwise be entitled to defense because of the national security privilege. The judge has decided that we don't actually know what that means, and so the parties have to decide it. This case has been going on since 2008, and if we don't know what the national security privilege means, that's deeply problematic in ways that should be obvious. A couple of other quick factoids on why this will never get to resolution. In the absence of guilty pleas, There are currently 13,998 entries on the docket in this case. And as of last week, a new judge was appointed to preside over the case. So he'll have some reading to do to catch on up with what's been going on. A lot of the classified filings are most likely only available at Guantanamo physically, which means that he will need to spend some quality time down there. He, like most judges, I would guess, are not actually based there. So it means lots of travel to and from Guantanamo. The prospect, the meaning of what the D.C. circuit has done, whether it intended to or not, and I really don't attribute any mal intent to the majority here, but the consequence of what they did is if plea agreements are not reached in the future, there will be no resolution to this case.
- [63:37]
Tyler McBrien
Yeah, actually that tees up the one small thing that I wanted to add that I found interesting. I mean, I guess kind of what you alluded to, that a lot of the country has moved on, wants to move on, is not paying attention anymore. But obviously for the families of victims of the 911 attacks, this is still very much like top of mind for them. And so this, this question of resolution and closure, I think has been an interesting one. You know, I assumed that the plea agreements would be some modicum of closure to, to a lot of the families, but then I was listening to, to one family member of a victim who thought the plea agreements would bring no closure and only a trial in which, which there's discovery and things will be aired in the public record will bring closure. So, yeah, I know, it's just, I don't really have an answer here. It's this one thing that keeps me interested in the military commissions, in addition to the absurdity and the novel legal questions, is this question of historical memory and closure that doesn't seem to have a straightforward answer.
- [64:44]
Alan Rosenstein
Yeah, absolutely. And I think one thing really, really worth emphasizing here is the military commission system is fundamentally different than the civilian system with respect to sentencing. And that's really, really important here because sentencing in the military commissions is effectively a mini trial. So parties introduce evidence, they make arguments in extenuation and mitigation. If they're the defense, they can argue all sorts of things to a panel, it's a jury. Because the procedure for criminal resolution is very different. I won't get into the details, but the fact of having a trial is something that actually would happen with guilty pleas. It would be different, but there would be an opportunity to sit in a courtroom, hear from the defendants, hear the prosecution make its case about why these people were so terrible require story be told about what happened and the injustice and the pain. The victims and family members of victims would be allowed to testify. There were actually terms in the agreements themselves that talked about the rights that victims and their families would have to participate in the proceedings. And really crucially, there were also terms in the agreement that said that the defendants committed to answering questions that the victims and family members had and they would be required to answer any questions that were submitted to them. And that's an opportunity for closure of a different type. It doesn't look like a trial, but it is a different sort of closure. And actually one that is. That is direct rather than sort of through a prosecutor. And I will not say that anyone is wrong in where they come out, particularly the victims and family members. They are entitled to their view on what should happen here and what is in the best interests of justice. I think the tension is where the question is really whether you are choosing between the possibility that at some point some theoretical trial that, as I've said, I don't think will ever happen could result in the death penalty and you would have the interest of a trial in whatever form that took versus you would have a different type of trial and there would not be the death penalty because the latter is what would happen from guilty pleas.
- [67:19]
Scott R. Andersen
So I think that's very important and useful context for the policy decision around this and why there's policy objections. I do think it's worth touching on the decision and thinking a little bit about where it goes from here. This is a panel 2 to 1 decision with Judge Rao and Judge Millett. Judge Rao being by miles the most deferential to the executive branch judge on the D.C. circuit. That's actually I know I read that as a stat that some law professor put together in an article I've read recently. I can't remember where Judge Millett, among I would say appointees of President Obama, President Biden, probably the most differential to the executive branch and concepts of executive authority. Judge Wilkins being kind of middle of the road, maybe like slightly more skeptical than your average D.C. circuit judge, who is on the whole relatively differential, I would say compared to maybe judges at other circuits. It was hard to tell given that the dockets are so different. Begs me to ask, like, is there a road for this case moving forward? Do we have a sense about whether they could seek to go en banc or even to petition for cert? Or does it look like this is the end of the road for these pleas, this legal agreement and that therefore that brings us back to that political reality that no plea agreement is in place and we are in this kind of potentially interminable proceeding.
- [68:35]
Alan Rosenstein
Yeah. So I don't know how to judge the possibility of the defendants requesting an en banc review or going up to the Supreme Court. Ultimately, once it goes back to the military commissions, if it's remanded, it is certainly possible that that plea negotiations could begin again. This is after all, a different administration. I mean, the fact is that the commission's functions on its own accord. And my general theme here when I talk about the commissions with people is they were set up with a desire to keep things out of sight and out of mind because this was such a complicated dilemma of, of what do we possibly do with what we have made, with this problem that we have made of capturing hundreds of people, bringing them to Guantanamo, having tortured them, having done all sorts of things that complicate the principle that we should deal with them in accordance with the rule of law. And so for the past 20, more than 20 years, most people have just sort of lost interest and let the commissions do their thing. And that includes from the sort of broader policy perspective, that means that the administration change actually shouldn't have anything to do with it because as the military judge found, this is the district level court. The Secretary of Defense should not have had the authority to go in and reverse what the convening authority had done by agreeing to the deals. That was something that the appellate court and the military commissions and the D.C. circumstances circuit, all three judges notably disagreed with that finding with respect to the Secretary's authority. But the fact remains that it's not certain that a Secretary of Defense would weigh in here. And in fact, no Secretary of Defense has weighed in in the past. There have been eight guilty pleas in the military commissions already. I should disclose that I represented one of the men who pleaded guilty and no one has bothered to intervene. No one has had any concerns with them in the past. It hasn't been subject to the same type of political interference. So we will see what happens on remand. We really don't know. And I think whatever happens, this was a moment of possible progress that was really going to make a difference. It was still going to be slow after this, this, but there was some movement and we are back to the land of no movement. And the one thing I can almost guarantee is that everyone will very rapidly lose interest.
- [71:18]
Scott R. Andersen
Well, for better or for worse, we have reached the end of our time for today about this and other topics. But it does seem to have Ample opportunity to return back to. And we, unlike many others, have at least fairly consistently turned back to this topic over the years. Among others, we discussed discuss today. But this would not be rational security if we did not leave you with some object lessons to ponder over in the week to come. And we are back in your podcatchers. Kevin, what do you have for us this week?
- [71:42]
Natalie Orpen
Well, I've got to share some exciting news out of the University of Texas. We had some engineers here who have been researching with more than 1500 different materials to look through which materials are best suited for a MIDI and retaining and blocking different heat, which has huge ramifications, for example, in keeping buildings cool. So they were able to use AI to identify a material that could save the equivalent of 15,800 kilowatts per year in an apartment building. And if you have no context for what the heck that number means, a typical AC unit uses a about 1500 kilowatts annually. So this is a huge breakthrough. Really cool developments going on here in Austin and a good example of the fact that AI might not cause the end of the world. And thank you.
- [72:38]
Scott R. Andersen
And I cannot imagine why people in Austin would be interested in that particular line of research. Tyler, what did you bring for us this week?
- [72:45]
Tyler McBrien
I brought a great piece in the July issue of the Baffler magazine on the current state in the history of professional bull riding, which is fascinating. Specifically one league called professional bull riders, aka PBR, which was founded 33 years ago by 20 bull riders, each of whom invested only $1,000. And it is now just ballooned into this multi, multi million dollar industry that is wildly dangerous and fascinating. And yeah, I just learned a ton and it's a total romp. It's really interesting.
- [73:18]
Scott R. Andersen
Fascinating. Fascinating. If you've ever been to an actual bull riding competition. I went be honest. It's completely terrifying because they're large animals and they are doing some violence to those poor men strapped to them, no matter what that clown may have to say about it. So intrigued, intrigued by this turn in the industry.
- [73:34]
Tyler McBrien
Needless to say, I'm sticking to the mechanical bulls.
- [73:37]
Scott R. Andersen
There you go. There you go. Well, for my object lesson, I'm taking a more serious angle at this one, but a very interesting one that intersects my interests with those of Kevin and many others here. Between the tech and the conflicts and the Middle East. This is an article in by the. By the Carnegie Endowment that they released last week. I believe it was. Yes, actually earlier this week. Excuse me, by Mahsa Al Amadani and Sam Gregory Two people with Witness, a very interesting human rights organization that does, among other things, a lot of work with digital evidence and information and misinformation out in the public sphere. They did a lot of work around the recent Iran Israel conflict, short lived conflict, and have published an article with with really, really interesting and highly alarming trends and practices they've documented. Basically documenting the role of AI generated images and footage and misinformation, including by the government's A Hand opens with an anecdote of the Israeli government building off of some actual footage of actual attacks they pursued, then circulating additional images AI generated images suggesting those attacks had done much more than they'd actually accomplished in the real world that many people took at face value. That was not in fact the case. It is absolutely fascinating and a very important front of a research and a train of interest in regards to conflicts and other political crises, particularly in this decentralized, popularized era where information and media can be generated and circulated by day to day citizens, sometimes anonymously, sometimes when they're not even really actually people. It's absolutely fascinating. I highly recommend it that you check it out. Natalie, bring us home. What do you have for our object lesson this week?
- [75:15]
Alan Rosenstein
Well, I feel a little guilty that mine isn't fun and light hearted like Tyler and Kevin's, but thank you for making the transition to mine, which is a book that is called Drive youe Plow over the Bones of the Dead, which is darker sounding than it actually is. But it is a book by Olga Tukarczuk. I may be slightly mispronouncing that. I apologize. She is a Polish author, actually winner of the Nobel Prize in Literature from several years ago. I have never read her before but will be doing so again. It's a really beautiful book, very, very unique. A little hard to describe in that it is some combination of murder mystery and I don't know, I'm you guys just should read it. It's very, very good. It is one of those books that is translated beautifully but at the same time makes you really wish that you spoke Polish so you could read it in its original because there are undoubtedly a lot of specifics to the language and culture and history of Poland that would add additional depth to it. But highly recommend. Not as dark as it sounds, so go out and enjoy.
- [76:27]
Scott R. Andersen
Fascinating. You are not the first person to actually recommend that book to me. I've had other people, I can't remember who exactly, but it's been on my list, I maintain, of books I should think about reading. So maybe I'll bump it up a few spots. Thank you for that, Natalie. Well, for us, that brings us to the end of this week's episode. And not just this week's episode, because a flag for regular listeners. We will be off next week as I am going on vacation, the last one of the summer, I promise. So do not tune in for us next week. We will be back the week after on our regular schedule. Until then, Rational Security is of course a production of Lawfare, so be sure to visit lawfourmedia.org open page for links to past episodes for our written work and the written work of other Lawfare contributors, and for information on Lawfare's other phenomenal podcast series. While you're at it, be sure to follow Lawfair on social 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 lawfairmedia.org support our audio engineer and producer this week was Noam Osband of Go Rodeo and our music as well always was performed by Sophia Yan and we are once again edited by the wonderful Jen Pacha. On behalf of my guest Tyler, Kevin and Natalie, I am Scott R. Anderson and we will talk to you next week. Until then, goodbye.
- [77:47]
Noam Osband
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