Morning-Again-in-America Sausages

Would that the origins of these links had partaken of more caffeine before starting the sausage-stuffer…

• From the Department of Rats-Leaving-the-Sinking-Ship, online rag The Vulture adds 28 partially disclosed spices to this link concerning the purported state of the "book industry" — spices that apparently didn't reach academics, indie writers/readers, those actually involved with the implicitly-denigrated "genre fiction" (whose sales were implicitly envied), or more than 1km outside of Manhattan. Fact of which these navel-gazers are apparently unaware: The population of Manhattan — about 1.7 million at the most-recent census — was a hair over 2% of the nation's.

  But that last fact is the actual cause of the seeming demise (and general irrelevance) of The New Yorker. It was predictable at the time this notorious cover, and perhaps even as early as the breakup of the Algonquin Roundtable (the desperate attempts of those like F. Scott Fitzgerald to glom onto the nascent H'wood income-and-exposure apparatus should themselves cause reconsideration). If New York had ever been the "center of American culture (for all the right people)" — and Boston and Philadelphia might object, even without getting to the Left Coast — it sure as hell wasn't by 1976, and sure as hell isn't half a century later. More broadly, looking outside the US would have been educational for the author of this… "hagiography" is wrong as to tone, but there really isn't a better thumbnail, blawg-entry-appropriate description.

  That these two pieces — and, especially, their subjects — share substantial conceptual difficulties is not coincidental. But at least they're not continuing to struggle with/for/against Straussianism. Or are they?

• The business day is usually considered to begin at 0900 — slackers (the "business day" needs to start with barracks inspection just after sunrise… and, of course, those doing the inspecting had to be up before that). Friday, 02 January 2026, being the first business day of 2026, can you guess how long it took for mutiple dubious appellate copyright decisions to issue? Even on a "one-day work week" due to the way the calendar fell this year?

  Around two hours (Pacific time). And were these matters ever dubious…

  Let's take the simple one first, although the Ninth Circuit's inexplicable decision to split it into both a precedential and nonprecedential decision makes it look much less simple than it really is. Sedlik v. von Drachenberg, No. [20]24–3367 (9th Cir. 02 Jan 2026) (precedential and nonprecedential decisions issued simultaneously), concerned a simple question wound up in procedural issues resulting primarily from poor advocacy in the District Court: Does a tattoo based on a nonunique (if "iconic") photographic portrait of a deceased individual infringe the photographer's copyright? (Those of you with long memories may recall that we've been here before (first sausage) — regarding a different eminent treatise author, also in snarled procedural posture.) Leaving aside the nonprecedential opinion, which is largely about the plaintiff's procedural shortcomings in the District Court, the real value in the precedential opinion is in the second concurrence — and even it jumps the gun, ignoring Justice Holmes's warning well over a century ago:

  It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge.

  Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903). The danger here is quite obvious, especially given the rejection of the "sweat of the brow" rationale for copyright protection in Feist. To even reach any of these issues, one must determine what parts of Sedlik's photographs are original expression (and credit the "iconic" status of the photographs); then whether there was copying of those parts (which was largely admitted by this defendant); and then whether the defendant has any defenses. And here, the court stumbled rather badly by focusing on a fair use defense — whether properly left to the jury or not — without first considering whose originality is at issue in the "copying" of a portrait that largely omits the background, transforms its medium from photograph to tattoo, and — perhaps most to the point — is far from the only photograph (even similar photograph) of a deceased public figure. And this was not helped by the continued reliance on a line of Ninth Circuit cases that try desperately to evade the guidance of another 1990s Supreme Court copyright opinion — 2Live Crew (a/k/a Campbell). That this panel probably reached the "objectively correct" law-school-textbook result just makes the stumbling prone to falling into someone else's dispute.

• Unfortunately, a very similar is-it-protectable-expression? problem arose in Yonay v. Paramount Pictures Corp., No. [20]24–2897 (9th Cir. 02 Jan 2026). (One ironic similarity: Both Yonay and Sedlik were argued, for losing plaintiffs, by individuals with significant prior records in establishing copyright law.) This time, the court — an entirely different panel of judges — did better in separating "fact" from "expression" for a (IMNSHO bad) film based in part on a nonfiction article; or, rather, the later sequel thereto, and claims by the author of the article that the later sequel infringed the article's copyright, breached the original license, or both.

  However, this panel's better copyright analysis was partially overcome by a contract analysis that managed to ignore the context of entertainment-industry contracting in the 1980s and the context-driven "rational expectations" of the parties concerning "life story"-type material. The conclusion may well be correct — the entire text of that contract is not in the opinion, only purported "critical phrases" and an allegation that "nothing in the context of the agreement suggests any reason to depart from" grade-school-grammar analysis of conjunctions. This rather elides away that most entertainment-industry contracts are replete with compound nominatives that embed one or more conjuctions, so hidebound by tradition that a grammatical analysis is positively misleading.^† So I'm not convinced: The context of the agreement exactly suggests that simplistic grammar rules probably don't reflect the understanding of the parties, and almost certainly don't resolve the problem of internal definitions that assume familiarity with relevant commercial customs. I seem to recall some discussion of that in 1L Contracts, particularly Rest.(2d) Contracts § 222. Now combine that with the bad writing endemic to entertainment-industry contracts…

• On a seemingly lighter note, the Court of Justice of the European Union attempted recently to discern when a designer's name attached to things he/she/they didn't design is unlawfully deceptive. But maybe this isn't lighter after all, in company with the other sausages on this platter. Nor is it really lighter than the broader questions of "artistic attribution" that it implicates, ranging from trivialities like the darkness of the "painter of light" and dubious employment practices of esteemed local artists that ironically protected his copyright claims to weightier questions like the aphids on the (wilted) flowers in the attic and the propriety of proclaiming "A Film By". I guess the reason this sausage seems lighter is that the CJEU just didn't bulk it out with enough filler.

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†  As you can well imagine, this can lead to some real headaches while negotiating these agreements. One on which I was a silent/undisclosed consultant about twenty years ago went through twelve iterations of we-remove-a-clause-they-reinsert-it — because the wet-behind-the-ears negotiators for [name of major studio withheld] were working from company boilerplate etched on stone before the Copyright Act of 1978 made their clause both unnecessary and arguably unlawful. They claimed to not have authority to change their well-tested language. We eventually got the removal approved, but still…

The publishing segment of the entertainment industry is no better. Buried in many contracts, even today, are references to "the plates" used to print the books (obsolete since the early 1990s), ipso facto clauses purporting to return all rights to the author upon the publisher's bankruptcy (contra 11 U.S.C. § 362 (1978)), declarations that a freelance (and not commissioned prior to creation) work outside the categories in the Copyright Act § 101 definition is a "work made for hire," and a variety of other problems ranging from definitions of "subordinate rights" made obsolete by both the 1976 Copyright Act and commercial/technological changes since to outright defiance of Supreme Court opinions. How much of this reflects honest disagreement with (what at least I see as) binding law and how much is an attempt to "contract around" that law under some para-Lochner conception is for another time, another few hundred footnotes.

Just Another Police Action

Looks like it's morning again in America DC. Too bad I'm a night owl, who spent most of his first career hoping the clock wouldn't reach midnight (notwithstanding the best efforts/worst instincts of the ideology-driven morons in governments across the world). The clock moved a few seconds closer very early this morning. And I have questions.

The rhetoric currently coming out of DC is that the "limited" invasion of Venezuala was intended primarily to "arrest" a "narcoterrorist." I'm not convinced, no matter what the cretins in the Office of Legal Counsel say to rationalize policies reminiscent of previous American experiences in Latin America. At least we didn't have to rely on a third-rate band from California for the actual "apprehension" this time (I'm pretty desperately searching for anything less negative here). That, however, raises a few questions.

1. Making an arrest for a US indictment? Worse, without the cooperation (not just permission) of the nation in which that arrest takes place? On top of that, of the head of state/government, however dubious the process leading to that status? The irony that the real "precedent" for this under US law is Noriega should give one pause — and lead to a lot more questions, in and of itself.

Noriega's status as a federal defendant depended upon converting his initial status as an alleged prisoner of war to a criminal defendant. His status as a "head of state/government" was much more questionable than is President Maduro's (which is certainly questionable enough… but only under the domestic law of Venezuala, which the US has no standing to enforce). The Eleventh Circuit nonetheless rejected Noriega's status-based challenges to his indictment and conviction. US v. Noriega, 117 F.3d 1206 (11th Cir. 1997). There's one critical fact in the Noriega matter that is different in the current matter, however: Noriega, acting as head of state of Panama, had declared that Panama and the US were in a state of war prior to the US incursion. (Id. at 1210.) I'm not aware of a corresponding statement from Maduro, making the "prisoner of war" aspect less tenable.

2. But how about that arrest, disregarding Maduro's government status? Here, there's a clear answer in precedent… that is probably wrong as a matter of international law, but is at least questionable; and it is certainly more than just "questionable" regarding any official of a foreign government. The nearly circular reasoning in US v. Alvarez-Machain, 504 US 655 (1992) (note that this postdates Noriega's "apprehension" in 1989), provides that precedential rationale. One need not even reference the disfavored-by-this-Administration ICC's detailed, and indeed exhaustive, consideration of these kinds of issues, especially in post-Yugoslavia, to spot the logic problems with Chief Justice Rehnquist's opinion; the well-reasoned dissent from Justice Stevens suffices without those pesky non-US-lawyer-supplied arguments.

That said, the current US Supreme Court — due to its excessive, and more extreme than any past Court, deference to "the Executive" on a range of issues — is just not going to repudiate Alvarez-Machain; if offered the opportunity, it would probably extend it. In the abstract, it's a difficult circumstance, because there really isn't an unrestricted-by-national-boundaries "police force" that would ordinarily be the proper "arresting and indicting" authority, by analogy between US federal and US state systems.¹ (That's just not how the ICC works, contrary to uniform bloviation by every Heffalump administration to even notice it.) This is sort of the flip side of the (now-disfavored) rationale that "rights imply a remedy" — something like "criminal offenses imply enforcement." Yeah, not so much.

3. Then, too, there are some problems with the mechanics of the "arrest." It appears to have been done by — or, at minimum, substantially assisted by — US military personnel. Given the absence of any prior declaration of hostilities, that's acting as law enforcement. Even if a DEA agent was the one who put the cuffs on:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

18 U.S.C. § 1385 (as amended to 2021). Note that there's no territorial restriction here; that it requires authorization by Congress (or explicitly in the Constitution); and that it concerns any execution of "the laws." Absent that Congressional authorization, then, those who "used" military forces for enforcement of civil laws are subject to indictment.²

The "law school exam question" follow-up is whether Congress has the power to retroactively provide the specific "authorization" (leaving aside, for the moment, its at-the-moment-hypothetical inclination to do so). There's certainly more than one way to do so; it could amend Posse Comitatus, it could pass a resolution authorizing military force against Venezuala/its government/its head of state, it could (just short of that last) pass a resolution generally authorizing military force in support of bringing a foreign-located individual to US courts after indictment for a range of offenses including "narcoterrorism."³

•  •  •

Questions 4 through n are reserved for future consideration. Probably by others who have sufficient current security clearances, and current need to know, and more knowledge about "how the military works" than anyone in the Office of Legal Counsel has demonstrated in the last half-century or more. I can only hope that this particular "police action" doesn't require another granite wall… and gets recognized as a "real conflict" sooner, without any Gulf of Tonkin nonsense. Oops — it's too late for the latter; an accusation of "narcoterrorism," let alone an actual indictment, already puts that in play.

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1. This is, of course, a vast oversimplification. Just about everything is going to be a vast oversimplification because as yet, we're dealing with the indictment of a ham sandwich — an indictment that is intertwined with both general policy and conflict-of-interest-colored preferences related not to Maduro so much as to Venezualan petroleum. The Monroe Doctrine did not, or at least was not supposed to, mean that while European powers needed to stay out of the hemisphere, the US could intervene however its current Administration desires; and it's all too easy to imagine the US reaction to the equivalent from the People's Republic of China, or the Duchy of Muscovy Russia, or Iran. Oh, wait, we don't need to imagine it — it's been fairly public over the last couple centuries, and we don't even need to reference pre-Monroe-Doctrine "precedents" in North Africa.
2. I think we can agree that this Administration will simply not indict any member of the Administration unless/until it leaves office on 20 January 2029. It appears that the default three-year statute of limitations applies to violations of Posse Comitatus — which will run not later than 03 January 2029. Interesting planning, there… so maybe the Office of Legal Counsel does have some use, as there's a decent probability that there's a classified memo somewhere discussing exactly this issue. Advance attempts to manipulate the statute of limitations in a criminal matter speak loudly that someone, somewhere in the Administration, has something resembling a guilty conscience.
3. Bluntly, this last would not be a good idea — resembling, as it does, Soviet and, umm, other practices from the Cold War era. <SARCASM> At least it's not an authorization for assassination, which is at present prohibited via executive order (that can also be rescinded by the executive at whim). Leon Trotsky's ghost would appreciate a quiet word in the corner, away from that vase with the bug in it; and without further comment and only as an exemplary reference if accepted on its own terms, see Roya Hakakian, Assassins of the Turquoise Palace (2011). </SARCASM>

Holiday Dinner

My "holiday dinner" was entirely mythical.

• The US doesn't have the only legal systems that matter to those in the arts (leaving aside the courts that do collections where the artists live…). Over across the Pond, artists of all kinds, in all the arts, need to pay attention to design infringement versus copyright infringment beyond the shape of their iPhones — and not just about the shape of their narrative, the shape of their canvas, or the shape of their jingtinglers. (Exhaustion comes from more than just reading a transferee's boilerplate "licensing agreement"!)

  More importantly — and with implications for Nancy Drew and the Hardy Boys — an attempt to register a trademark in a dead author's name after expiration of all of that author's copyrights has been rightly refused. Such a registration would undermine the fundamental purpose of trademark and related theories: Prevent deception of end-users in the marketplace. Application to the ghostwriters of celebrity biographies and such (not excluding this tome ranging from trash to outright lies) is left as an exercise for… someone with standing to actually get into a federal court, outside the Second Circuit. And it might require a selective, but not too selective, presentation of evidence.

  And, in some foreshadowing of what may come to pass in Florida, the European Union's top court rejected certain right-wing-government manipulations of Poland's courts as fundamentally incompatible with binding law. Although this sounds like it's something that only political operatives need to worry about, one might wonder about a hypothetical wrongful dismissal lawsuit by, say, Stephen Colbert, with "pretext" definitely stated somewhere in the pleadings.

  And if you haven't guessed, the sources of several of the links above are both intentionally ironic and more subject than most to later "removal at the source."

• All of which is a lot less confusing than Erasmus — even Desiderius's most-famous work (that has been read by somewhere less than 1% of college graduates). Ah, the benefits of a classical education, during the Christmas season.
• It's definitely less confusing than figuring out who controls the contemporary gaming industry, especially during the wrap-up phase of Stranger Things (when it was so much simpler).
• Meanwhile, back in treehugger country, there's a proposal on the table for a state-imposed tax on actual, realized income above $1 million annually (and only the part above $1 million). As usually, some idiots are claiming that even just the proposal will result in tax-flight by the ultrarich (which doesn't explain why Uncle Jeff left for another jurisdiction a while back, does it?). Mostly, this would be good riddance. If, that is, it can overcome a nearly-century-old decision by the state's supreme court holding that an income tax is incompatible with the state constitution… on grounds that were suspect then and no longer considered legally tenable now (not to mention the unacknowledged conflicts of interest that would really expose the problems with an elected judiciary).

Appropriate Enemies

That is, the opposite of whatever squickiness, by whomever, was going on. Thus, nothing involving children, prurience, or cover-ups.

• I'll gladly get on these assholes' enemies list, and it will be entirely appropriate because I've actually lived overseas… and had to deal with fallout from their predecessors. It's not much of a coincidence that ADF so strongly resembles AfD, both as abbreviations and in their cryptofascist politics — neither being a good thing.
• And then there's another individual who has "conscious parallelism" with AfD, especially on immigration policy: Dr Evil Stephen Miller. It would be unseasonable, vicious, and curmudgeonly — so, of course, I'll do it! — to point out that Barron Trump is a child of an immigrant who has contributed exactly nothing in work, or innovation, or any of the other values espoused by Miller and his ilk (and the AfD!) to the American economy. The Orange One's father was a child of two immigrants (and 1890s Bayern/Bavaria qualified as a shithole country); the Orange One himself is a child of an immigrant (his mother).

  I'm not suggesting deporting the Orange One and his family; I wouldn't impose that on Germany. Neither am I suggesting that the tender embraces of ICE (or their foreign proxies) are appropriate. I am, however, suggesting that the gander should be very, very careful about the goose's sauce.

• Meanwhile, the Administration has proven that it can't count, indicting the Broadview Six for opposing violent, warrantless seizures of people in the Chicago area. Dammit, if you're going to indict protesters in Chicago, you need to have seven (and then put the case in front of a judge long past his best). The purpose of ICE is not to prevent disorder… But at least you might get a popular-music anthem out of it — hey, wait, there's a foreign-born person on that stage!
• If it can't sabotage the historical sources of this nation's population very effectively, maybe this Administration can just sabotage foreign relations for a decade or so. That's about how long it takes to rebuild an embassy's credibility after it is rendered untrustworthy in the eyes of the locals (especially low-level government officials and nongovernmental people). And we're not talking about tiny Pacific island-nations, either — this includes (selected, alphabetically) Algeria, Egypt, Gabon, Nigeria, and Rwanda <SARCASM> fortunately, none of which have any adverse history with the US or influence in their regions </SARCASM>. Follow this up by banning people doing their jobs in a way that inconveniences The Orange One's friends from entering the US.

Coal in My Stocking

I can see the lumps already, probably because I'm not getting actually rewarded for not being enough of a shithead — or at least the right kind of prominent shithead. It could be, too, that I'm anticoal on "the science (as stated by those lacking obvious conflicts of interest) says there's global warming" grounds. At least at the moment, I'm not desperate enough to burn the coal to keep warm for a few minutes in Northern Hemisphere winter weather.

• On what should be a cheerier note but really isn't, perhaps a visit to a bookstore might be appropriate. Even one governmentally approved as an instrument of postcolonial cultural imperialism (fully aligned with past governmental appropriational bullshit that was pointed at durned furriners). In the relatively near future, it'll be more poorly stocked with the most-affordable editions… at least, and even increasingly, in disfavored subcategories like the misnamed "genre fiction" (the very name of which reflects disrespect for substance and inept recharacterization depending upon definitions that shift within the same paragraph — even same sentence — of the "industry analysis"). Of course, given the source of that last, maybe a little skepticism regarding its conflicts of interest is appropriate.
• Perhaps as much skepticism as should regard this piece of utter crap from the same source.

  "Writers create comp lists, look at databases, ask friends, read acknowledgements...and yet, if our data is correct, they are not identifying the correct agent for them 66% of the time."

  * * *

  Representatives from Simon & Schuster, Penguin Random House, Neighborhood Literary, GO Literary, DeFiore & Company, Brandt & Hochman Literary Agents, Laura Gross Literary Agency, Aevitas Creative Management, Writers House, Levine Greenberg Rostan Literary Agency, United Talent Agency, Curtis Brown, and Creative Artists Agency are also among those participating.

  Actually, the failure of the authors to blithely accept "expression of interest" as sufficient grounds to inquire further probably reflects that the authors actually are doing research — just not the kind of research that these arrogant conflicted assholes want them doing. Of that list of publishing-industry actors that (by implication) were not being contacted enough after expressing interest, a significant plurality have been either found liable or publicly criticized with facially-sufficient confirmation for engaging in fraud/fraud-like conduct with their own author-client/business-partners in the past few years. That they're being avoided by some authors indicates to me that some of those authors are doing appropriate research — which pleasantly surprises me, given the historical credulousness of the author community regarding business matters, especially when inexperienced with commercial publishing. It's not just about getting "an offer to commercially publish"; it concerns business relationships that, thanks to historical unfair negotiating tactics and abuse of monopoly power, frequently extend for the life of the copyright. I just wish things like this were rarer than the suppressed public notice implies (not to mention confidential settlement agreements, confidential arbitrations, and bullying).

  To put it another way: Interest from this guy wouldn't convince me to send him even ideas that would support a Desny claim, let alone handle my money. I've done my research (well, professionally so, but still). Commercial publishing is actually no different from/better than H'wood (or N'ville) in that. That PW and the "matching service" credulously given free publicity in that article would rather not acknowledge that results directly from their own conflicts of interest.

• Or you could just consider vendors with conflicts of interest. This conflict arises from both fairly obvious sources (the 'zon's own programs and sale/provision of material to other "GAI" providers, all of which presumably provides substantial compensation distressingly similar in concept to this), and less-obvious ones like "fundamental legal-basis misinterpretation." The latter is a bit complex, but it concerns the rights of a licensee (the publisher) to consent to conduct outside the licensor's (the author's) pre-agreement conception of what is in the license — and, more to the point, a sublicensee's iteratively-reflexive misconduct. One can't excuse everything by claiming it's marketing-and-publicity support… not even in the abstract, not even in the law-journal article and law-school-casebook context that doesn't consider the considerable effort, financial, and emotional costs to the plaintiff of objecting to 500kg gorillas with both ability and propensity to blacklist.

We now return you to our program of actually appropriate and relevant holiday music.

Zoozittacarzays Held Up in Customs

Remember that the Grinch was a great guy before that (probably fatal off-camera) hypercardia event, as he thoroughly deplored the commercialism and modern spirit of the season ("gimme").

• Little Marco wrote a memo, and made darned sure it was in a typeface notorious for its mistreatment of diacriticals and non-Roman characters, and that's virtually illegible onscreen in "dark mode." This will facilitate subtle snubbing of allies whose major cities include München, Göteborg, and São Paulo; tenser conversations regarding Донбас and Łódź; and anything from East Asia is right out. Frankly, that's more consideration than this Administration is giving the substance… and the emphasis on the appearance of the font is all too predictable. I'd suggest that waking up to others' perceptions in their own languages might matter to effective diplomacy, but that's obviously too close to "woke."
• And it gets even worse when State negotiates an extradition treaty and then ICE detains the foreign citizen whose presence in the US was involuntary, to face criminal charges. This isn't the left hand not knowing what the right hand is doing — it's the left hand giving the right hand the finger.
• Speaking of criminals who need to face charges, consider the superrich — and ponder the distressing proportion whose fortunes were founded through lawbreaking. And maybe consider writing a novel based on their (fictional) kids, because that's not copyright-protected subject matter…
• I suppose that beats being woundedinjured in action but not eligible for a Purple Heart. No visible scar, no medal… and good luck with that VA claim.

Feeling Like a TV Dinner

The public in the UK is wrong. It's a Christmas movie — but given the way things are going lately, I'm cringing about New Year's instead of anticipating it with glee.

• In a truly shocking development, a denizen of the art world acknowledges that not all is well. He's right that the auction system is "sleight of hand," but he's missing the bigger picture: The sleight of hand is itself just the magician's assistant distracting attention from reimposition of patronage systems on working artists. Not just in fine art, either; both commercial publishing and recorded music (even touring performance music) are almost proud of it, under other names. Even those who seem to be expressing sympathy for the difficulties of being in the arts are subtly reinforcing a return to early-Renaissance patronage. Which enables — encourages — early-Renaissance censorship…
• Speaking of sleight of hand, how about masking hate, bigotry, and lust for power with "faith" (again)? Of course, this isn't exactly new; in the Western world, just look at the Reformation and Counterreformation, and the West isn't even the worst offender (don't look too closely at South/Southwest Asia any time in, say, the last two-plus millenia).
• It's bad enough when a head of state goes after another nation's head of state; that faint echo of "Caaaaaaaastro" you might be hearing in the background is nothing, really, just voices in your head. Leaving aside that these targets of ire are often merely alternatives to something else reprehensible — remember, "our bastard" is still a bastard — it's much worse when the target isn't a foreign head of state, but a foreign jurist who is "attacking" an "ally" alleging violations of international law. Next, I suppose, will be insertion of Western Hemisphere Command personnel into Brasil's Supreme Court building to "supervise" enthusiastic enforcement of preexisting laws against coups by sore losers.

No further comments for a while on certain misuses of US military personnel to preemptively enforce domestic criminal law while the questionably-identified targets remain outside the US. It's not that I'm not outraged by any possible "kill everybody" orders, or war crimes, or failures of my successor commissioned officers to learn anything that's not in the curriculum at institutions that still celebrate other violators of the law of armed conflict and Posse Comitatus Act. It's that the facts as presented are insufficiently verified — which is, itself, a serious problem. And not a problem that I can do anything about.

Science Fiction Double Feature

It's Seattle. It's raining. And since the specifics of "latest newsworthy outrage" — political, in the arts, whatever — are changing so fast that there'll be at least one new one between the time I draft this post and the time it actually appears on the 'net, I won't even try to remove the cause….

I: The Matinee

He said, “I don’t know. I love the idea of democracy, the hope, yes, I love that. I couldn’t live without that. But the country? You mean the thing on the map, lines, everything inside the lines is good and nothing outside them matters? How can an adult love such a childish idea?”

“But you wouldn’t betray the nation to an outside enemy.”

He said, “Well, if it was a choice between the nation and humanity, or the nation and a friend, I might. If you call that betrayal. I call it morality.”

He is a liberal. It is exactly what Dr. Katin was talking about on Sunday. It is classic psychopathy: the absence of normal affect. He said that quite unemotionally — “I might.”

No. That is not true. He said it with difficulty, with pain. It was I who was so shocked that I felt nothing—blank, cold.

How am I to treat this kind of psychosis, a political psychosis? I have read over De Cams’s book twice and I believe I do understand it now, but still there is this gap between the political and the psychological, so that the book shows me how to think but does not show me how to act positively. I see how F.S. should think and feel, and the difference between that and his present state of mind, but I do not know how to educate him so that he can think positively. De Cams says that disaffection is a negative condition which must be filled with positive ideas and emotions, but this does not fit F.S. The gap is not in him. In fact that gap in De Cams between the political and the psychological is exactly where his ideas apply. But if they are wrong ideas how can this be?

Ursula K. Le Guin, The Diary of the Rose (1976).

II: The New Release

“Dammit, isn’t there a good option left?”

“You’re asking me? The same good option there has always been. The citizens take the responsibility for voting for those who will look out for the welfare of everyone, not just their own special interests. Good luck counting on that, though. They’d prefer someone to ride in aboard that silver starship and save them the trouble.”

[The admiral] started to reply, then abruptly laughed. “We always look at it backwards, don’t we?…. Democracies. Voting. People are always talking about demanding more and better performance from elected officials, but when you get right down to it, shouldn’t a democracy demand more and better performance from the citizens who vote? If they do their job well, then the quality of those they elect will naturally follow.”

“I suppose.” [The ex-Senator] shook her head, her expression morose. “But not entirely true. The leaders have to be worthy, have to avoid the temptations of power, have to be honest even when the people don’t want honesty. Democracy is a team sport, Admiral. If everyone doesn’t play their position well, the whole team suffers.”

Jack Campbell,^† The Lost Fleet: Beyond the Frontier: Leviathan (2015), ch. 9.

•  •  •

I definitely can't remove the symptom. Or side effects of any treatment: I really wish literati and Artistes and "guardians of culture" would stop judging books by their covers (like dismissing all of them that depict spaceships or dragons).

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†  (open pseud.) Lt Cdr, USN (Ret.); B.S., U.S. Naval Academy, 1978.

The Trees Matter, Too

I am rather pissed off at a former JAG's editorial/opinion piece originally appearing at the NYT.¹ Mr French — a former JAG — reaches some of the right conclusions. However, he does so by a fallacious reasoning pathway that fully undermines his conclusions and the desired result. His appreciation of the forest presumes that all of the trees therein are entirely suburdinate, identical, unthinking elements; this is rather ironic because he cited two counterexamples in his opinion piece. In short, he's too easy on commissioned officers because he doesn't understand what "commission" means. There's a lacuna in the JAG mindset (and, especially, the JAG mindset of the Army, the service in which French served) which, ironically enough, is illustrated directly by two chains of legal precedent that he cites in the body of his opinion piece: The circumstances of Lt² William Calley and the defendants at Nürnberg.³

Part of the problem here is that JAGs have (with some unusual-but-not-unheard-of exceptions) achieved their own commissions through a different path than is expected of line officers. They simply don't have the experience of actually implementing the tough calls, in the moment, with personal familiarity with the subordinates who will in most instances be actually pulling triggers. Further, due to their own duty structures, they have substantially less exposure to the immediate consequences of inconsistent orders and directives-not-qualifying-as-orders; similarly, they are insulated from the immediate and longer-term cultural and career consequences of even questioning such. Perhaps most relevant to French's piece, they have no clue about what actually maintaining "good order and discipline" in a combat or combat support unit (or even among REMFs) actually involves… or about how that can be impaired when there's perception among the enlisted personnel (and less-senior commissioned officers) that the officer(s) issuing the order to employ force are unthinking loyalist automatons, even in noncombat contexts.

Perhaps French's real conclusion, buried in the middle of the piece, is mostly valid for enlisted personnel.

In reality, junior officers and enlisted soldiers are often like the proverbial blind man feeling the elephant. We are given only partial information when we’re ordered to war. Our military couldn’t function if individual members adjudicated these questions themselves based on information gleaned from news reports or from their own incomplete review of the relevant intelligence.

Bluntly, this contradicts not just what line officers are trained and expected to understand, but the very passage from the (less-binding!) opinion in the Calley matter from the Court of Military Review that he quoted a few paragraphs above that passage. The obligation of a commissioned officer is to look at every order for its lawfulness under a nonlawyer's perception of what "a man of ordinary sense and understanding would, under the circumstances, know to be unlawful" — and when an order fails that test, obtain further guidance if possible and available but otherwise exercise the judgment demanded of commissioned officers and refuse to implement it. Calley failed that test, both personally and via directives he gave to soldiers under his leadership;⁴ any "man of ordinary sense and understanding" would have understood that encountering unresisting civilians means you can't shoot them until they individually resist. The Nürnberg defendants at all levels failed that test, both personally and via directives given to those under their leadership/command; any "man of ordinary sense and understanding" would have known that participating in the killing of unresisting children (to name only the most obvious instance) was unlawful.

In close calls and less-obvious circumstances that actually do turn upon what French refers to as "the often highly classified intelligence that presidents and senior leaders review when they issue orders to strike," it makes sense for the most junior personnel to rely upon a prior legal clearance in implementing those orders — so long as the circumstances remain less obvious. There's a line, though: The commission, which represents the "special trust and confidence" in the individual holding that commission, that changes what qualifies as "less obvious;" that expands the expected scope of "under the circumstances" from "there's adequate grounds to treat the target as containing combatants" to "collateral damage" to "information the immediately-responsible individual has that those policymaking authorities, at the level of abstraction required of policymaking authorities, do not." French's opinion piece gives at best lip service to that responsibility — a responsibility that, under centuries of the law of armed conflict, extends all the way down to the lowest commissioned personnel. It's precisely why post-Vietnam, commissions as line officers of the United States are extended only to those holding at least a bachelor's degree who are at least 21 years old: A presumption of wider worldview, greater perception, and honed judgment than even that of experienced enlisted personnel. Lt Calley's conduct demonstrates that Mistakes Were/Are Made — but that does not diminish the responsibility.

Another underlying failure of French's opinion piece arises because he conflates high-level, abstract responsibilities for ordering the use of military force by lower-level units with the immediate responsibilities of those looking through the gunsights, and affirming the current, immediate validity of what is in those gunsights as targets. Another historical example comes to mind: Flight 655.⁵ That wasn't about being "ordered to war," it was about interpreting higher-level orders in light of what a commissioned officer of ordinary sense and understanding would, under the circumstances known to that commissioned officer, know to be unlawful.

Ens/Lt/Capt/Maj/LtCmdr Ordinary Officer is not responsible for determining the lawfulness of the order to "go to war" against a properly-designated threat to national security.⁶ He or she is, however, responsible for determining the lawfulness of the second-level order to fire on a particular target, or class of targets — especially an order to destroy after incapacitation. French's piece elides the latter despite his citation of Calley and Nürnberg. That pisses me off and disserves the public in general; it also subtly insults the capability, integrity, and trust placed in nonpolicymaking line officers. <SARCASM> Bravo. </SARCASM>

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1. I read this at the Seattle Times, some time after its initial publication. Once again, assholes: If you aspire to be the "paper of record," you can't put a paywall between the "record" and the "public at large." Unless, that is, the only "public" that counts is that portion of the public that pays in advance for access to that record. And if that's the case: You're not actually "of record."
2. I refer to Calley as "Lt" or "Lieutenant" because relevant parts of the matter — and, in particular, relevant failures of judgment on both his part and the Army's training and evaluation elements — occurred while Calley was a Second Lieutenant (O-1, the lowest commissioned officer grade). Calley had been promoted to First Lieutenant, under the pre-1980 system, by the time he was referred to court-martial, so the case caption reads "1Lt." This would matter even more, under the post-1980 system, had it been a promotion from Captain to Major (or, in the Navy, Lieutenant (s.g.) to Lieutenant Commander; either way, O-3 to O-4). These are, perhaps, subtleties that don't matter… for this, particular, historical incident. The subject of French's opinion piece, however, is prospective, not retrospective, so at least a shadow of these distinctions is (or should be) apparent.
3. In a typical bit of Anglocentric linguistic imperialism, this city in southwest Germany is usually rendered as "Nuremberg," which manages to mangle both vowel and consonant sounds for no good reason. It also marks the last time that a sitting US Supreme Court justice actually practiced law — the chief US prosecutor was Robert Jackson, on leave from the Supreme Court.

   The various dramatizations of the proceedings and results — the only parts that most, and indeed too many, people know of — focus on the highest-level politicomilitary leaders and "associates" of the Third Reich. That's certainly defensible in terms of "narrative coherence," but it neglects all of the lower-level personnel who were prosecuted (and mostly convicted) in the various proceedings. That neglect takes attention away from Calley's failure: The Dienst ist dienst "defense" of blindly following orders.

4. Here, a perhaps hypertechnical objection — one that is reinforced by the Navy's continued misuse of "commander" as part of two officer grade names, and misuse of the word in job-title descriptions like "tank commander" and "aircraft commander." At the platoon/tank/aircraft level, the leader (even a commissioned officer) is not a commander, but a leader. Actual command, however, involves more than just giving orders and/or being the most-senior individual on site; that many of these distinctions are specifically legal, such as the authority to actually confine a servicemember for misconduct, is a seldom-considered irony when JAGs blithely discuss officer responsibilities.
5. Source chosen primarily because it's both readily available and lacks obvious conflicts of interest.
6. This gets extremely messy when that officer has direct personal knowledge that the asserted factual basis is false, or the use of military force has not been propertly designated and directed — let alone when there's a disjuncture between high-level policy and individual-munition-level explosions.

The 2025 Turkey Awards

An annual tradition for nearly three decades! This is my list of ridiculous people from 2025 (so far). Pass me one of those rolls, please:

• The Greasy Gravy Award for oily publicity that makes the main dish inedible goes to lazy, "cost-efficient" sponsored content — both the providers and the venues.
• The Red-Tide Oyster Stuffing Award for carelessly poisoning an otherwise tasty dish goes to everyone in the chain of command who can't spell "undue command influence" — a fairly important concept (PDF) that helps avoid past US armed forces failures, too. Implied intent to prosecute a retired field-grade officer, after a recall to active duty that would itself probably be unlawful (as one cannot serve multiple branches of the government simultaneously, and Kelly is an elected member of Congress), who warned against mindlessly obeying unlawful orders? Really? That orders are "presumed to be lawful" does not, in any sense, mean that "presumed" means "necessarily are" — that's the entire point of rejecting the legal (as distinct from evidentiary) basis of Calley's defense.
• The Broken Wishbone Award for shattering dreams goes to everyone involved in the government shutdown. Both parties. Both houses of Congress, and the Administration (and even substantial parts of the judiciary).
• The Golden Gristle Award for assertions far too difficult to digest (and usually stuck in one's teeth) goes to the Illinois Supreme Court, which managed to — simultaneously, no less — evade its responsibility to "regulate the profession" in a way that makes the inadequacy of state regulation of the profession irrefutable; demonstrate that electing judges leads directly to conflicts of interest; fail to explain itself to educate either the profession or the public; and leave a "lawyer" able to continue precisely the corrupt practices that formed the background for his prosecution and conviction. Bravo!
• The Conspicuous Consumption Cranberry Relish Award for the most-outrageous example thereof goes to the current Administration, which not only started gold-plating everything at 1600 Pennsylvania that doesn't move — it did so during a government shutdown while recipients of food aid were looking forward to impending starvation.
• The Crabapple Pie Award for marketing something sour as something sweet goes to the Inner Party leadership of both major political parties for ensuring, up and down the ballot, that we're almost always choosing the lesser evil. The Inner Party leaders are supposed to be guardians of the processes of a democratic republic (especially, but not only, against populist demagogues), not all-too-comfortable, all-too-well-paid-through-dubious-means unaccountable power brokers. They've utterly failed.
• The Wilted Salad Award for the one part of the meal that's supposed to be "good for you," but is instead rather past its sell-by date, goes to the DOGE of Venice Beach for trying to apply purported "market efficiencies" to an organization that by its nature operates where markets can't and don't: Governments. Especially those parts of governments that have to deal with the unexpected, right now. P.S. "Efficiency" is not an objective, neutral good thing — just ponder Maxwell's Demon (PDF) and the benefits to the demon of moving those particles around…
• The Brussels Sprout Award for stinky, slimy, overcooked, gentrified little cabbages goes to the organizers of the practice parade. From top to bottom. And the stench is still pervading the kitchen, even after thirty-odd years avoiding them at year-end holidays (they were all too popular Over There).
• The Dried-Out Breastmeat Award for overcooking the books goes to Anthropic and its "colleagues." And the idiots who — rather ironically, given its canonical status in computer science — ignore the aphorism that the perfect is the enemy of the good, while definitely ignoring that perfection is subjective, uncertain, costly, and further delayed. In the best of all possible worlds, that wouldn't be true; neither would ripping off the original expression of authors (not whatever facts are being presented) be so easily excused.
• The Rancid Drumstick Award for something that should be edible, but isn't, goes to all of the participants in Signalgate, who managed to simultaneously demonstrate their contempt for classified information, those who handle classified information, journalists and journalism, and everyone placed in jeopardy with their carelessness/egos. I'm afraid this year we've got a turducken's worth of rancid drumsticks.
• The GMO Tofurkey Roast Award for a main-dish item that's supposed to be more wholesome, nutritious, and/or ethical, but merely hides something that's perhaps worse under that veneer of virtue, goes to Secretary Brainworm and his fellow Know-Nothing allies. I'm starting to think that MAHA stands for Make America Horrible Again.
• The Unwanted Obligatory Guest Award for the guest at the banquet that you had to invite (but wish you didn't have to because you knew would spoil everything) goes to the other bigoted uncle that you're trying to pretend isn't actually related to you, Major Major Major Mr Hegseth. His actions over the past year demonstrate pretty well that he doesn't, in fact, respect the chain of command — and that he's forgotten one of the critical principles of leadership: Respect runs both directions or you end up with both mission failure and mutiny.
• The Leftovers Anticipation Award for something that has returned from the past to haunt the gathering, and cause indigestion, goes to ICE, leftover from eight years ago and gathering ice crystals in the made-in-China-but-imported-before-the-current-round-of-tariffs freezer in the garage.

  The Broken Wishbone Award for shattering dreams goes to [ICE], which thought it was a good idea to effectively repudiate and repeal DACA without even acknowledging a certain poem in New York harbor. (As the rest of the administration has demonstrated, acknowledging either simple humanity or the interest of the public not composed of one's existing campaign contributors would be just too much effort.) Next: All persons who are not protestant northwest Europeans, with long-form birth certificates so proving, will be invited to wear an appropriate yellow armband… probably manufactured at low cost in South/Southeast Asia (with numerous misspellings on the tag and a false "Made in USA" declaration)…

  This isn't any tastier, or more appropriate for an AI-generated-in-the-style-of-Norman-Rockwell picture, than it was in 2017. One wonders what items from this year's spread are going to reappear in the future; quite possibly all of them.

Sorry, there's no room left on the table for the Salmonella Carrot Medley (Artifical Color Added) Award, as it's been retired (and can't stand up to being in the freezer for eight years).

Charade You Are

Shut up, piggy.

• Staying with that first kind for a moment, history's rhymes of late have sounded a lot more like hard-core counter-gangsta rap — explicit calls for violence by the police, not against them, delivered as an exaggerated distraction from real grievances actually having little, or at most indirect, relationship to the advocated violence.
• Or, as the case may be, pure pigheaded ignorance. Interestingly enough, there hasn't been a comparable report Over Here as of yet; if there were, the period from mid-February 2020 for about a year would almost certainly, based solely upon what has been released in public to date, get much the same evaluation (which is not to limit the criticism to that period or the national government, either).
• OK, that's the first kind. Here's the second. The underlying headline is rather asking whether Adolf Schickelgrüber, Ioseb Jughashvilli, or Leopold II was responsible for the most/longest-lasting human suffering — there really isn't a "winner," and certainly not among the victims. It's not always necessary to draw the line for where narcissistic sociopathy ends/begins — especially not hiding amongst the techbros…

  Perhaps irrelevant aside: It's not the "tech" but the "bros" that's the real parallel; just look at the fairly uniform character flaws among "rising magnates of new industry" of the past, whether the US (Vanderbilt, Rockefeller, Morgan, Carnegie, Ford…) or elsewhere. It's almost like the ambition to be the biggest pig(s) in the sty encourages gluttony and reliance on the work of others.

• The third kind of pig is a bit more subtle. Rather than oinking, snarling, and flopping about in overt displays of fatness, they focus more on suppressing notice of their fatness. Sometimes they justify it through worship of "market forces" and "loyalty to shareholders" (usually failing to acknowledge that the largest shareholders are to be found among that third kind of pigs).

There's really only one proper conclusion: Mmmmmm, bacon — but that would require curing it first ("uncured bacon" is an oxymoron — without curing, it's just "pork belly," however tasty), and I've not found a lasting cure for any of the pigs that contributed to this platter…

Again? Really?

So, the Office of Legal Counsel appears to believe that military personnel engaged in strikes on "drug-trafficking" boats cannot/will not be prosecuted. Really? Again, you ignorant sluts?

Let's neglect, for the moment, that overruling the National Security Act of 1947 as amended requires an actual bloody amendment. This matters — yet again — because the purportedly binding nature of the Office of Legal Counsel's "opinion" is interfering in a chain of command established by statute. I've been unable to find anything in any proper amendment to the 1947 Act (and there have been several) that inserts the OLC into the chain of command. The OLC can, at most, provide outside advice to the Joint Staff and the respective service chiefs. Further, we've had multiple historical demonstrations that the OLC's expertise simply does not extend to military law; the Yoo memorandum is only the best-known.¹

We'll also neglect, for the moment, that the "opinion" was classified. Recall the proper grounds for classification: "Information may be considered for classification only if its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security," with the particular levels of appropriate classification defined (see § 1.2) with wording little changed in the last half-century. One can only conjecture the "identifiable or describable damage to the national security" — as distinct from damage to any individual (including but far from limited to the President), organizational imperative, policy initiative, or pipedream — from disclosure of a memorandum of law that (ineptly) discusses and dismisses prosecution of military personnel in a hypothetical future operation of uncertain factual context and unspecified content of relevant directives and orders.²

The fundamental problem is that the memorandum is indefensibly wrong. If the orders are in fact lawful, and in furtherance only of lawful actions, there's no risk of prosecution in the first instance. There might be for exceeding them, or I suppose for hazarding a vessel in the course of following them, but that's a different — and highly fact-bound — issue beyond the scope of any pre-event legal memorandum. If the orders are unlawful and the memorandum is purporting to excuse following them anyway, the memorandum is legally wrong.³ We've been here before.

[E]ven if Calley had received the orders as claimed, he would not necessarily have been exonerated. The military judge properly instructed that an order to kill unresisting Vietnamese would be an illegal order, and that if Calley knew the order was illegal or should have known it was illegal, obedience to an order was not a valid defense.

(emphasis added) And no matter the ego or righteous conviction of one or more civilian lawyers at the Office of Legal Counsel, they can't overrule the Fifth Circuit. At most, they can supply some authority that a particular class of orders, without consideration of specific context, might be legal — but that just goes to the "should have known" issue, because the individual who issues unlawful orders should have known, too.

Perhaps these are seditious words. If so, I own them; and I assert that a Presidential suggestion — however disguised as a social-media reference — that anyone "be arrested" for reminding military members that following an unlawful order is itself unlawful seems to constitute a "high crime or misdemeanor," and especially so in opposition to the Speech and Debate Clause and/or First Amendment.

This Administration appears to be engaged in an epistomological attempt to determine the number of wrongs n that makes a right. I remain… unconvinced. (And they can't have the pony, either.)

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1. I make no representations regarding the content or existence of any other Office of Legal Counsel memorandum, present or historical, concerning either military law or legality of classes of prospective conduct by military personnel, that has not been declassified and made available to the public. I similarly make no representations regarding the mining of manganese nodules from the floor of the East China Sea.
2. Probably only the same sorts of considerations that led to burglarizing a psychiatrist's office. With, one might contemplate, ultimately similar results.
3. In any such/similar memorandum that has been made public of which I'm aware (whether or not formally declassified), there's a simultaneously startling but ultimately unsurprising omission: Any consideration of Article 133, Conduct Unbecoming an Officer (codified at 10 U.S.C. § 933) as a source of prosecutorial grounds independent of the specific actions. And this as we approach the 80th anniversary of the Nuremberg proceedings, let alone considering whether military law might treat failure to make independent, circumstance-specific inquiry as a dereliction of duty. Dienst ist dienst indeed.