The Anthropic (Lack of) Principle

Some e-mails and others' blog entries lead me to believe that the class definition in the settlement regarding Anthropic's use of pirated material as training material for its "AI" is causing some needless confusion. Slightly rewording it, the class members who can recover are those who:

• Hold the copyright,
• in works leeched by Anthropic to "train"¹ its "AI" systems
• that were, for US works, registered with the Copyright Office
• with an effective date preceding the leeching
• and within five years after first publication.

It's those last two qualifications that are causing the confusion, because they're not about copyright law — they are, instead, about the technicalities of class certification, and specifically about the problem of class representives having circumstances typical of the class and that the common questions presented predominate. However, it does relate back to copyright law, in a way, too — because works falling outside of these parameters and leeched in this scheme still violates that work's copyright, but it would require further litigation. The incredibly ill-advised registration system — which is inconsistent with the Berne Convention's disdain for "formalities," but for both historical and hidden-agenda reasons beyond the scope here continues to be part of US copyright law — has two provisions that are prone to abusive litigation tactics. The class definition excludes those tactics by defining otherwise valid copyright claims out of the class.

The easiest to understand, and the one with the most validity, is that the effective date of registration² needs to precede the date on which the material was misappropriated by Anthropic. This isn't about copyright validity, but about the availability of certain remedies under § 412. Since those remedies are important parts of this class action, they've been forced in through the class definition.³

It's much more difficult to accept the "registered within five years" limitation. A registration can be made at any time that a work's copyright is in force. The "five years" comes from an evidentiary qualification in § 410 of the Copyright Act: A registration whose effective date is within five years of first publication is prima facie valid, but a later registration is subject to challenge more generally. Excluding the post-five-years-registered works is a litigation decision made in negotiating this settlement (and in the class allegations in the complaint), because it appears that none of the proposed class representatives falls into that group and the additional squirreliness involved in validating those registrations might theoretically impair the "common question" aspect of class certification.

Unfortunately, that last point in particular has been misinterpreted in a number of places as meaning that more than five years after first publication, it's too late to register at all (instead of just for this particular lawsuit). Frankly, that's what some parties here want you to think, because without registration there's no individual cause of action that can be heard by the courts (§ 411, although this is a claim-processing rule and not jurisdiction⁴).

The fundamental problem is that the publishing industries — some more than others — have been at best slovenly in registering copyrights, even when the publishing contract requires such registration.⁵ (It was worse under the 1909 Act, when that failure to register also forfeited the copyright itself.) It is still worth doing late registrations (so long as the term hasn't expired and the registrant is even more careful than usual to proofread the application and ensure it's fully truthful and accurate). This suit, after all, is not going to resolve all questions regarding leeching of material under copyright… and the next set of class counsel to come along, or even individual lawyers, might be more aggressive. However, they can't file if there's no registration.

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1. I'm just not going to express my contempt for this sort of deceptive misuse of language here. Although that misuse is endemic to the general discussion of "AI" and "generative AI" and "chatbots," the point of this blawg entry is misunderstanding of copyright law by affected authors (and potentially many others).

   Don't worry, you sleazebuckets. I'll deal with your intellectual dishonesty and intentionally deceptive acts and practices more directly another time. Bwahahahahaha!

2. Although really not relevant here, the effective date of registration is ordinarily the earliest of the date of actual application (including payment of fees) or — if that application date is 90 days or less after first publication — the date of first publication. Naturally, the "date of first publication" is defined in the Copyright Act only for "phonorecordings."
3. We'll pretend, for the moment, that § 505 provides the only way to recover attorney's fees. It doesn't; the rule governing class actions provides for attorney's fees (regardless of whether the cause of action otherwise provides for them), and on a far more generous basis than does the Copyright Act. Needless to say, I'm displeased with the confusion here, too.
4. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). This matters because federal class actions can include claims of dubious (or even no) subject-matter jurisdiction if pursued individually.
5. This failure constitutes a breach of contract by the publisher. On one hand, it's probably long past the statute of limitations, since the failure to register "should be" apparent to the author not long after publication. Creative lawyers might use such breaches — especially when part of a pattern or practice — to strike other defenses offered by publishers for other breach-of-contract claims like failure to pay royalties; this is called the doctrine of unclean hands. Of course, the hands were a lot less clean when smearing linseed-oil-based inks…

Ghost Peppers and Classic Rock

This platter gets overspiced rather rapidly, I'm afraid. I'm just trying to cover the faint odor of rot from the less-than-wholesome ingredients.

• The least-spicy sausages on this platter are the IP-flavored ones. These days, IP-flavored almost certainly involves something calling itself "artificial intelligence", especially when hoist by its (their?) own petard. Of course, one need not rely on advanced technology to find IP perfidy — mere humans can breathe deception, too.
• Senator Turtle thinks the present somewhat resembles the past, specifically the 1930s? No, really?

  Leaving aside that he's almost got first-hand memories of the 1930s,¹ and the obvious and parallel counterproductive tariff bullshit, and the overobvious aspirations to become Reichskanzler just down the street from him — not to mention familiarly-named right wingers in the news in Italy — consider "lifestyle" problems all too familiar to the 1930s (as invoked without specific identification in the musical seasoning of this sausage). One might also consider, on a similar basis that also ignored intertwined side issues,² whether "lifestyle" problems like this one are more than just "lifestyle" problems.

  I suppose I'm expected to be happy that Senator Turtle showed up to the party, however late he is. Unfortunately, he showed up while the paid-off-the-books-below-minimum-wage janitorial gig workers were cleaning up afterward. So, no, I'm not happy. You shouldn't be, either — not even with that gold-plated kazoo you snatched from the table on your way out.

• At least it wasn't a gavel being snatched from the table by rude guests. The fundamental contradiction of completely distrusting the ICC's ability or intent to engage in actual, careful consideration of facts as part of the rule of law, especially when compared to internal dissembling amongst and concerning a plethora of bad actors (and by that I mean the target institutions, not the individual grantees) and/or treating "appalled by atrocities in the Levant, regardless of who commits them" as necessarily meaning "antisemitic," appears beyond the understanding of anyone involved. Which should surprise precisely no one.

  The usual aphorism has things precisely backward: Sure, he's our bastard, but he's still a bastard (and therefore untrustworthy). Delving into that is the ICC's role — even, and perhaps especially, when it's inconsistent with immediate interests.

• Of course, the ICC seldom sticks its nose into mere civil rights when violations are short of death. Whitesheetingwashing that is a domestic issue. (Foreign source chosen with malice aforethought.)
• And then there are apologists who get things partway right (and then implicitly expect praise for their vision and forthrightness). The fundamental problem with both that opinion piece and attacks on the "university system" is that they are searching for "the soul" and "the purpose" in the singular. The entire point of bringing scholarly development, and education, and research (distinct from mere "publication"), and public service together into a university is that there isn't a singular soul, a singular means of advancing civilization — that not all problems are nails to be pounded into well-seasoned wood produced off-campus by less-prestigious craftspeople, meaning in turn that the toolbox needs to be smarter than a box of hammers. Professors Russell and Patterson do not demonstrate any familiarity whatsoever with laboratory- or field-based research in their piece, nor with the interface and implications of with "social and political issues" at the core of their concerns; engineering, healthcare, etc. are right out. This tunnel vision disserves both their rhetoric and their conclusion and reminds me very much of what happened last Friday in St. James's Library. Then, as they're both law professors, an underinclusive understanding of "research" is probably to be expected.

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1. Presuming that there's no dementia involved… which, because I've had no direct observation relevant to that, is only an assumption. "Good faith," "grasp of reality," and "actual intelligence as distinct from cleverness" are each another issue entirely.
2. Cf. my late client (and friend) Mr Ellison's contribution to a six-decade-old TV series, and the implications of attempting to apply "alternate history" models in reverse. Not to mention the costs involved no matter what. <SARCASM> But then, externalizing costs is a good thing, right? It supports higher stock prices, and thus higher executive salaries and bonuses! </SARCASM>

Gov Mander's Territory

Gerrymandering is once again a thing. These battles between unaccountable gatekeepers — the elected legislators who pass the bills are almost never those who actually draw maps; instead, it's a combination of outside hired guns who lie about their actual purposes and "senior party leadership" seldom in elective office — demonstrate utter ignorance about, invidious stereotyping of, and contempt for voters.

Voters and districts do not belong to elected officials. Elected officials belong to the voters.

A distressingly-large, even dominant, aspect of gerrymandering is a result of continuing to apply eighteenth-century social concepts to even the twentieth century, let alone the twenty-first. During the eighteenth century, "born, lived, and died within 25 miles of point X" was the default; by the time the Voting Rights Act was passed more than half a century ago, it described only a minority, and today that minority is even smaller. During the eighteenth century, for those who "worked," the "workplace" was within two miles of the "residence" for well over 99% of the population; by the time of the VRA it was somewhere between 40 and 60% (depending upon the definition of "worked" and of the "workplace"), and today — even with the COVID remote-work-from-home disruption — it's probably less than 25%. Education, court appearances, government offices, libraries, shopping for both necessities and discretionary/luxury goods, internet access itself… the list goes on. And it's going to continue to change.

I therefore suggest, in an effort to prevent the legislators of America from being a burden on their voters or country, and for making them beneficial and responsive to the Public, that we minimize use of maps at all.¹ This modest proposal is to eliminate "first past the post" elections in all federally-established multimember electoral allocations and in as many others as possible, and instead use a combination of proportional representation and ranked-choice voting. Regardless of the exact mechanisms chosen, this would ultimately show far greater respect for the voter who, say, lives on the north side of Austin, Texas, but commutes to school/a job on the south side of San Antonio, or vice versa; or Baltimore and DC. Even more relevantly, consider other pairings like Naperville and Chicago, Redmond and Seattle, San Mateo and San Francisco — all of which represent a far-more-common circumstance than two major nationally-known cities whose centers are only an hour's drive apart (traffic permitting!).² The map is not the territory, and it's long past time that we actually acted like it — especially regarding elections, when many of the relevant boundaries have drawn themselves through behavior decades or more after being put in place by all-too-often marginally-literate sailors.

Of course, this is merely a "modest proposal": The probability of it even being taken seriously by people who have obtained power based upon electoral maps asymptotically approaches that of the current Administration nominating any current law professor at Columbia to any Supreme Court vacancy opening before the end of this year.³

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1. "Eliminate" would be even better, but there are multiple Constitutional problems with that, beginning with the fiction of "states." Rigid federalism is all well and good until somewhat gets hurt by the fights on the playground, like a little over a century and a half back… This particular modest proposal requires only statutory change, because the power of internal allocation is in fact committed to the states. See U.S. Const. Art. I § 4; cf. also Baker v. Carr, 369 U.S. 186 (1962) (declaring a federal right to voting equality within a state, but ultimately after remand deferring to state determination of methodology and division except when the methodology or division implicates another established federal right).
2. I'm afraid that the voter who lives in Kansas City, Kansas and commutes to Kansas City, Missouri; or lives in New Jersey and commutes to New York City or Philadelphia; or lives in Vancouver and commutes to Oregon — that is, has substantial personal and community connections to multiple states simultaneously — is SOL under the Constitution as it stands. Of course, voters who live in New Jersey are SOL for a lot of other reasons, albeit not nearly so compellingly as those who live in Illinois (let alone Cook County)…
3. With all due respect — no, with virtually no respect whatsoever: Bite me, Senator McConnell. Better yet, read both your oath of office and U.S. Const. Art. II § 2 cl. 2, and consider that they refer to the body as a whole and not any subpart thereof.

Imperfections

Things are slowly returning to normal in the Sharknest, which reflects a rather disturbing linguistic slippage of "normal."

• Professor Sarat muses on the propriety of jail terms, using as examples two… apparent sociopaths. Professor Sarat is well known for his opposition to the death penalty — an opposition that I share because, having been inside the machinery short of and including death, I will not tinker with the machinery of death — which is all well and good. This short piece, however, fails to acknowledge two brontosaurii in the room, both of which are busy trampling the greenery (and leaving herbivore droppings everywhere).

  First, and perhaps most obvious, the purple and orange-striped beast: If not prison, what? Does that alternative do a better job with "punishment" than does prison, is it equally (or more) administrable, and is it equally (or more) ethically acceptable in a context of imperfect human imposition of punishment? (That the death penalty fails all three of these inquiries is not coincidental.) This is the argumentation problem underlying most attacks on public institutions: There's seldom equally-rigorous consideration of potential substitutes — not even when the substitute is "we don't need it at all!" Life and policy and society are not binary Oxford-style debates…

  Second, a bit better camouflaged, the mottled green-and-grey-and-brown beast: What is the objective of imposing adverse consequences upon those convicted of criminal offenses (leaving aside, for the moment, those guilty but not convicted or pardoned for no good reason)? If that objective is not uniform, how do we tailor what we do without undermining "adverse consequences for getting convicted of criminal offenses," especially when we've got imperfect humans involved in the "convictions"? (Don't even think about proposing hallucinating "artifical intelligence" as an alternative…) Whether under the classic "four distinct purposes" model underlying "modern" criminal jurisprudence or another rubric, the individual psychology of the offender inevitably would destroy uniformity, even coherence — and that's no way to win a struggle.

• In an entirely expected result of the initial hearing, the Army demonstrated that it cannot be trusted with aviation anywhere near civilian aircraft. Even moreso when Army aviation standards and culture are such that they can't tell when they are near civilian aircraft.

  This is, in part, a problem with training methods. "Local area familiarization" should largely be handled through intense simulator sessions, especially when that interfaces with "daily life that isn't about the Army." That will not eliminate the need for at least some actual flights, but it should vastly reduce them — to the point at which they can be scheduled and routed to avoid "daily life" or, as in this instance, "needless death." The incentives for doing so, however, are minimized by both historical and cultural pressures, especially within the Army aviation community. (BTW, don't think the Marines, the Air Force, and the Navy are off the hook here — just ask any resident of the southern end of Whidbey Island, including the orcas, about that! Their pressures are different in detail and extent, albeit not in kind.)

• On this blawg, my few persistent readers have probably noticed over time that I try to apply scientific standards where they fit. (They don't fit in evaluating individual works in the arts…) But what are they? Is a free spirit of inquiry enough, or does it require something more? Do standards require adjustment, or is the problem not with the standards imposed on science but the standards imposed on scientists and their careers? Can I write a bunch of obvious rhetorical questions?
• It's not limited to "the sciences," either. History professors have similar problems, reinforced by watching government officials fall off the edge of the world (which is nonetheless round — eppur si muove, figli di puttana) based on fundamentally inaccurate and dishonest data collection (that doesn't even meet any need of the organization collecting the data).

Not Irascible

Instead, permanently irasced. Fortunately for those of my three regular readers who have sensitive dispositions, Life has gotten in the way of blawgging of late. There are only so many times one can point out that all officers of the United States (including both the military and everyone else) take an oath to support and defend the Constitution against all enemies, foreign and domestic. Not to support and defend one's personal interests, or tribal allegiances, or self-righteous moral doctrines — the Constitution. A document that had embedded in it both a self-awareness of possible error and an inherent, limited, and direct mechanism for change (which is one of its two fundamental innovations — most others, however radical in substance, are mere more-extreme examples from late-eighteenth-century systems).¹ A document that proclaims itself as less than perfection, a mere guide toward creating a "more perfect"² union.

OK, then. On to the rather unappetizing platter of sausages — a platter that epitomizes "you really, really wouldn't want to have seen these sausages being made."

• The Grauniad yet again wonders about the Problem of the Dishonest Memoir, which sounds like — but isn't — Sherlock Holmes fanfic. Maybe the problem isn't with the books, but with the selection process for them (and the marketing process thereafter). As a thought experiment, it would be worth comparing the reality games played in Richard Powers' Galatea 2.2 with those in James Frey's A Million Little Pieces, and pondering that one author successfully used the form of the memoir to comment on reality and evolution of a single soul, while one… did not. Then reverse the marketing categories plastered onto the books…
• That may be too much heavy thinking for a July heat wave in the Northern Hemisphere. How about the much simpler "eat the rich"? It's not like there are no examples, all in very poor taste, ranging from housing bubbles to succession crises IRL and even "meritocracy" as the emperor's new clothes. Or maybe we could just consider "entitlement as practiced by the fictional rich," either in the present tense or a century in the past (as carefully elided by Disney in a "classic period" animation involving lots and lots of puppies).
• That last aside leads into this month's episode #2716 of musicians are getting ripped off by the distribution system at least as much as audience-victims of TicketBastard while questioning whether there has ever been a middle class of musicians earning their living from music — or whether that would be a good thing in the first place. The irony that both of those links go through "begging walls" may be a bit much for a hot Monday afternoon, though.

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1. What this says about the intellectual dishonesty of slavish adherence to a vision of "original public meaning" is for another time. At that time, we'll consider things like "who is the public," "what nature of evidence is there of the 'public meaning,'" "must, or even should, clearly technical contexts always use 'public meaning' as their touchstone, as in the word 'judg[]ment,'" and perhaps most egregiously "does the 'public' of 'who is the public' form a union-set with the sources of evidence of 'public meaning.'" But what would I know about that, after struggling with the disjunctures within Beilstein as both German and the underlying knowledge of chemistry evolved over a century, or after dealing directly with [redacted], [redacted], and [redacted] with their overt temporal shifts in meaning in my first profession?
2. Perhaps examining the use of the word "perfect" in mathematics, and particularly the mathematics of the late eighteenth century as well known to (among others) Franklin, Jefferson, and Samuel Adams, might be valuable virtually impossible given the utter lack of basic mathematical and scientific literacy (past the "rocks for jocks" general education courses) endemic in the legal and political communities. Except, that is, among some economists and MBAs who have fun manipulating the numbers to support their preconceived notions, supremely confident that no one who they might otherwise respect will challenge either the numbers… or the data-gathering methods. It would also require thinking about "boundary conditions" — something that advocates of "original public meaning" try desperately to evade.

Not Braving the Mall for Boxing Day

…particularly since the malls near here are a quarter or more empty. Which doesn't diminish the parking lot madness. Or the threat of being run down by delivery vehicles.

• Misconduct in the "c-suite" in corporations is everywhere, from health insurance to water utilities. This is what happens when more than one generation reads the LLM-generated summary of The Wealth of Nations and never realizes that there's a word before "self-interest." It's bad enough to neglect "enlightened"; too often, though, executives forget what the "self" is when they're directing operations of a company with a lot of non-equity stakeholders. Big hint to MBA programs: The "self" in "self-interest" is most emphatically not related to the "take any opportunity for personal advancement and withdrawing an arbitrageur's commission";¹ insurance policy holders are in fact the company's creditors, the water utilities exist at the suffrance of the landowners served, and so on.

  Insert a comment — with footnotes and photographs and a paragraph on the back of each one — about "the reason for the season" being inconsistent with the prosperity gospel (which is, itself, inconsistent with actions by the protagonist, but since we're already in cognitive-dissonance territory what's a little more?) right about here.

• Or maybe right about here. Sadly, the publishing industries (frequently including the "indie" segment) epitomize the problem. Those in charge — whether in editorial, S&M, or "general management" — are almost invariably not qualified to practice in the field.² This should remind the excessively scholarly of Holmes's Lament:

  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. Yet if they command the interest of any public, they have a commercial value — it would be bold to say that they have not an aesthetic and educational value — and the taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change. That these pictures had their worth and their success is sufficiently shown by the desire to reproduce them without regard to the plaintiffs' rights.³

• Which leads directly into musing about blind spots in the law that itself displays an immense blind spot: The inept equation of "extremism" with "ideology," without adequate consideration of deception, of claiming the mantle of victimhood to evade real examination, of rage (however justified/unjustified) relating to self-identity. Bluntly, "hurt feelings" do not equate to, and seldom result in, coherent, or indeed any, disinterested inquiry into details of an ideological position. Justified? Distrust of Manifest Destiny by Native Americans. Unjustified? The disturbingly-corresponding Great Replacement Theory, which is not in fact an "ideology" at all. Hint: Just because the FBI and Geheimstaatssicherheitbüro declare that something has an "ideological origin," coming from agencies that gave us self-interest-masquerading-as-principle ranging from Cointelpro to [redacted, much more recently] doesn't make it so. I do not think that word means what they think it does — let alone what they say it does. This is just excessive fandom — disturbingly similar to belief that if the opponent wins he/she/they must have cheated.
• Issues with bullying, lashing out, and self-interest shading into the cognitive dissonance of limited-scope megalomania (with elements of "simple" narcissism and sociopathy blended in) often arise in retrospective legal proceedings regarding "war crimes." This is by no means saying that, for example, on available evidence a certain recently-fled dictator guy doesn't merit such scrutiny. The irony that, in the medium and longer term, formalized reconciliation really hasn't worked, just points at how hard the problem is — especially when applied to businesspeople, not government officials. When all of the other tools for dealing with misbehavior by the powerful are taken away, "the law" becomes a hammer… and all misbehavior starts to look like nails.
• At least they're not nails viewed in a mirror. Yet. What kind of holiday season would it be without an existential threat? (Not one I've ever experienced.) No more sugar chirality for you, guys. (Or proteins, or nucleic acids, or…)
• Those who lost the last American election are the most likely (not certain) to propose dragging us out of the eighteenth century and landowners' franchise. It does bother me that my vote for President this past election was worth about 82% of that of a resident of Montpelier, just in terms of population disparity between districts… and it gets worse when one factors in that I was "only" voting for one tenth of my state's "undivided whole" of electoral votes. (And the less said about Iowa and the "representativeness" of the caucuses, the better.) The real problem is that every electoral system has distortions built into it; comparison is a highwire balancing act, with very hungry litialligators below…

  That this is a natural consequence of "gatekeepers" is for another time; the US certainly isn't alone in having severe difficulties. The real problem is that our betters don't trust us not to elect demogogues. How's that worked out in the last century, guys? (There's a reason that "divide and conquer" leads almost inexorably to "plurality claiming a mandate"… and the math just isn't that hard. Well, it's hard to put into HTML.)

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1. Analogies to Maxwell's Demon, Szilard's seldom-challenged-never-refuted demonstration (three quarters of a century ago) that the Second Law problems with Maxwell's Demon apply not just to heat but to information and indeed all ordering, and of executives to demons are entirely intentional.
2. Hell, they're often not qualified to even consume in the field! So as to avoid a defamation action (if the individual is still alive), I am carefully not naming the c-suite executive of a major NYC commercial publisher — one that included a "literary fiction" imprint — who boasted in the bar at a convention a while back of never having read any literary fiction.
3. Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–52 (1903) (citation omitted). I'd call this a safe and seasoned precedent, but of late the Court has been ignoring the imprecation to limit lawyerly egos to the law. Take your pick: basic biology, lab technique, nonscholarly 18th century linguistics applied to people whose progenitors had no preserved voice in that era…

Caseless Link Sausages

Since I haven't finished what little holiday shopping I'll be engaging in, I'm not going to wrap these link sausages either.

• So the rich want to buy into nobility (semi$wall) despite the American prohibition on titles of nobility, do they? Well, that's certainly not the only benefit of an original position advantage. Nobel prizes appear to be directed that way, too. Not to mention the irony-free criticism of a "nepo baby" by another "nepo baby".
• That last note leads to a few musings on the meaning and strategy of President Biden's pardon of his son Hunter.

  First, let's clear something out of the way: So far as I can tell, President Biden did not criticize any action or decision of the judge(s), so the judicial faux outrage is unwarranted. What he instead was criticizing was misuse of prosecutorial discretion — and choosing to elevate these charges to criminal (instead of the ordinary assessment of civil penalties on both the tax and firearms charges) should raise eyebrows, because it certainly presents the appearance that a Drumpf appointee with a history of vindictiveness in his prior Drumpf appointment may have failed to consider the complete context. Anyone who tries to pretend that there's never any pressure on individual prosecution decisions coming from institutional loyalty concerns has never been there, or at least never had misgivings about a particular matter. Let alone any regrets.

  Second, consider the timeframe. This is both legally sophisticated and a slight error by President Biden and his advisors. What he has essentially done is cut off the ability of a new administration to continue prosecution on purportedly "new" charges that are similar to those already raised. It's not just that extending backward to 01 January 2014 includes the entire period during which Hunter Biden was on a Ukrainian board of directors; it's that it extends three years backward from 20 January 2017, slightly over three years — that is, the statute of limitations for federal offenses for all except RICO (four years), continuing conspiracies, and outright murder. In turn, that means that in order to get a subpoena, a newly-appointed special prosecutor is going to have to demonstrate probable cause that something over ten years old by the time Drumpf is in office (another, obscure evidentiary-value issue that would force a judge reviewing a warrant application to at least pause) remains not just relevant, but persuasive. It's a slight error because going back 11 years, instead of 10, would also have related to RICO charges (four years prior to the prior Drumpf Administration initiation — it's a bad argument, but one that can be made in camera with a straight face for political purposes). Of course, this analysis is coming from the outside, without any inside knowledge of what was actually being considered… but in light of some previous frustrations with statutes of limitations.

  Third, this is intimately connected to Drumpf's own past and future conduct regarding pardons. Past, in that he pardoned his brother-in-law (cousin-in-law?) and now proposes to appoint that convicted felon individual to an ambassadorship (for which he's manifestly unqualified, but that's a half-century tradition that crosses party boundaries, I'm afraid; at least it's only to France); how this differs from Biden pardoning his son will be a tale told by a fool, full of sound and fury but signifying nothing. Future, in that criticism of Biden for pardoning his son as a white-collar criminal and for technical regulatory violations that (so far as is known) are unconnected to any substantive offense will underly any conversation about prospective pardons for insurrection. One might suggest that the holier-than-thou of all politico-personality loyalties ponder hoisting by one's own petard, but that sort of goes off the rails once one says "ponder," doesn't it?

  And, frankly, this is a lot more verbiage and consideration than the topic deserves. Don't kid yourselves: Pardons have always been politically dubious, if only because they necessarily involve second-guessing specific decisions by the judicial branch, the legislative branch, or both — not to mention depend upon finding third-party advocates (especially visible/prominent/powerful ones) more than the underlying facts, however those facts have been determined.

• Unfortunately, this just leads into other contexts and considerations of prejudice in action. (n.b. These examples have been carefully selected to offend as many unthinking doctrinaire assumptions as I can conveniently stuff into a single sausage. OK, maybe that's an eyebrow-raising assertion after the preceding one, but a foolish consistency is for small minds — and this is surely about foolishness.)
• Or, I suppose, we could just ponder yet more inaccurate, inadequately considered assumptions about large-language generative Eliza. It's not "intelligence" if it doesn't enable actual, defensible (even if incorrect) reasoning by analogy — and the "teachers' assumptions" built in deserve a lot more consideration than they've gotten. It's not even particularly insightful, however convenient.

A Halloween Sculpture

This public sculpture is the thing that scares a group of people who would never read this blawg, because they can't control it: Theocrats (and their ilk). Trick or subpoena treat!

Yes, I already voted. Over half the races on my ballot included an individual unfit for (any) public office, which says something rather distressing about the contemporary political process in the US.

• I don't often link to TNR; its proclamation that it has "independent reporting" is… puffery at best, and closer to deceptive branding/advertising. Despite that skepticism, sometimes it prints outside (that is, not written by staff) book reviews worth pondering, even when they fall short. The difficulty with Professor Lanham's approach is that it doesn't even mention the two barriers — familiar to anyone who understands either the scientific method or the more obstinately-classical Aristotelian logic — that make all varieties of "originalism" untenable as an unsupplemented deterministic method.

  Originalism necessarily assumes that texts have single, identifiable authors — even if that single, identifiable author is "a momentary agreement among individuals," such as "the US Constitutional Convention of 1787." As to the US Constitution itself, the very existence of both The Federalist Papers and The Antifederalist Papers — with their strident, contemporaneous, and often utterly incompatible interpretations, not to mention that there were members of the Constitutional Convention on both "sides." Contract disputes present a more-familiar problem; remember that by definition, a contract is supposedly formed only by a "meeting of minds." Then, too, there's the assumption that that author was a competent writer in the first place, who actually meant exactly what was written (and teh converse). So that's a theory-based problem.

  There's a much more disturbing dataset problem, especially as one gets farther in place or in time from the document(s) at issue. It's epitomized by this newpaper headline from last century:

  Dewey Defeats Truman!

  Recall that the Trib reached that result through a telephone poll of those it considered likely voters — which, if the data set had reached Mississippi, wouldn't have included very many descendants of slaves; which, closer to home, wouldn't have included those who didn't have telephones at home, or who didn't answer during their dinner hour, or who worked odd shifts or were otherwise away from home; it definitely wouldn't have included anyone in the military. In short the "public" from which the Trib drew its "facts" was nonrepresentative. It's even worse stretching to two and a half centuries ago; one might well wonder what Crispus Attucks would have thought "free persons" meant, but that would require that his writings had (a) considered the matter, (b) survived to the present, and (c) existed in the first place. Much the same for marginally-literate farmers. Or teh wimmin, who didn't have the right to vote, who didn't have the right to independently make and enforce contracts, who may have been residents but were certainly not thought of by the Founders as "citizens" (when thought of at all).

• This year's set of Nobel economics laureates (admittedly, the prize in economics is not technically a Nobel) is a collection of advocates for democracy (and implicitly for equality of rights). It's worth pondering how this fits in with upper-class politicians, especially those beholden to business interests.

  And, of course, congratulations to them and their fellow laureates in other fields.

• Languages evolve, sometimes (with official sanction) toward idiocy. But then, if mugging other languages in dark alleys (or even broad daylight) and going through their pockets for loose grammar and vocabulary were a crime, English would have been locked up centuries ago as a habitual and repeat offender (and at any trial, would have proclaimed not innocence but justification).

  Any relationship of this sausage to the others on this platter is entirely intentional — and purposely ambiguous.

Cultivating Schadenfreude as Electoral Method

After having sat through three football (all kinds!) weekends of election commercials now, it's pretty clear to me which of the two major parties is the lesser evil. This time, anyway.

• The underlying meme of Jackass-sponsored (or coordinated-but-not-really-no-that-would-violate-election-finance-law PAC-sponsored) commercials is either about how Joe Voter can/will directly benefit, or about how The Other Side will actively hurt Joe Voter. When not attack ads based on personalities and distortions, that is.
• The underlying meme of Heffalump-sponsored (or coordinated-but-not-really-no-that-would-violate-election-finance-law PAC-sponsored) commercials is to ignore the Heffalumps' own accomplishments and instead focus on the pain the Heffalumps will inflict on the Other. When not attack ads based on personalities and distortions, that is.

Political commercials of any kind are bad enough; if they were for commercial ventures, they're so far beyond mere "puffery" that they're outright false advertising and unfair trade practices. But that underlying Heffalump meme is nothing more, and nothing less, than cultivating schadenfreude as an electoral method. Joe Voter is (supposed to be) swayed by the pain to be inflicted on The Other, regardless of whether there are actually any objective benefits to Joe Voter. <SARCASM> Increased suffering of refugees and other immigrants? Great! Who cares that the vast majority of their jobs are those that Joe Voter doesn't want? Increased suffering of sexual deviants? Even better! That'll help keep Ward and June in charge. Increased suffering of women with unwanted pregnancies? Not just better, but demanded by the original public meaning of "citizen" (which excluded women)! Plus, they're all ne'er-do-wells improperly competing for good jobs with white christian nationalist men anyway, they need to stay in the damned kitchen and raise the damned kids. </SARCASM>

Now before you think I've gone all partisan on you, this is a judgment of the moment. And the Jackasses, however much lesser an evil they are at present, still have a heart of darkness epitomized by (in alphabetical order) Madigan, McClain (not that one), Menendez, and Myers… and that's just (part of) the letter M, (part of) the corruption, entirely ignoring the — well — thoroughly post hoc rationalized and institutionalized ignorance. But it's a lesser evil than a party led by a convicted felon and sex offender, whose backup can't tell the difference between a fact and a rumor, with its own cohort of corruption (and problems with cows).

One might say that America deserves better; but in a representative democracy, there's an undercurrent that the electorate deserves exactly what it elects (which has an aftertaste of schadenfreude in itself). True dilemmas do exist. It remains important after "resolving" them, though, to do two things:

• Take appropriate, effective steps to avoid being put in that position again; and
• Remember that when choosing the lesser evil, one is still choosing evil — and that requires continued vigilence thereafter.

He's Still a Bastard

At the moment, I'm not referring to American electoral politics, at any level. At the moment (it could change…).

• A gentle reminder when choosing allies: Even if he's "our bastard," at the next opportunity he'll prove pretty definitively that he's still a bastard. (Partisan allegiance and gender immaterial.) Exhibit A: Cozying up to Stalin during the Second Thirty Years' War. Exhibit B: The Pahlevis, at any time. Exhibit C: Manuel Noriega, the US ally against the commie menace in Central America (just ignore that little drugs-and-violence side issue). Exhibit D: Ngô Ðình Diệm, and, for that matter, his successors (another prop-up-the-illusory-dominoes-no-matter-what ally). Sometimes we get to see that in real time … Exhibit E (no longer pending): Benjamin Netanyahu. The means used constrict the ends that can/will be achieved — so don't look/act so surprised that the Middle East is acting like, well, the Middle East for the last few millennia ("one bad bottle of tequila from all-out war"). I'm afraid that in the region within 1500km or so of 31°57'N 35°56'E, the present and historical leaders are almost all bastards.

  When no longer in panic mode, it's much easier to see that the enemy (of the moment)-of-my-enemy (of the moment) is not necessarily a friend — especially after considering the body count and assessing collateral damage. The difficulty is the near-constant state of panic…

• It's not just in politics, either. Although I'm no fan of judging a work of art by the character of its creator(s) — purported or indisputable — it's also almost impossible to fully isolate one from the other, especially once transferees are involved. In literature, in musical performance, in recorded music, or in anything else, the character of the rightsholders and creators manages to slime in.
• Once upon a time, purported freedom of contract was the meme underlying capitalist economies. For a while, anyway, we put a small brake on that meme. (This isn't unique to the US.) Recent developments look more like backsliding.

  This problem would be bad enough if just limited to labor law; some of the links in the preceding paragraph more than hint at this. The meme that "business should be able to do anything on which it can make an immediate profit without 'interference' from noncompetitor do-gooders" ignores that Adam Smith's works — the foundation of "modern" capitalism, even when not acknowledged — were in the realm of moral philosophy. Some business models are inherently deceptive, when they (barely) avoid total moral bankruptcy. And whether "moral" or not, any pretense that properly deployed deception is merely good business reduces Smith's "invisible hand" to a single finger — and you can probably guess which one.

• At least in the abstract, property rights are important; even in a (hypothetical and never-achieved) "purely communist" society in which all "means of production" are owned in common, property rights just shift to other aspects. Sometimes those property rights conflict, especially when deployed for noneconomic reasons, on both side of the dispute.
• It's not all about the Benjamins in the arts, though. Even when the creative no longer feels a need to save the world, the arts need to be placed in context.

A Run Through the Jungle

The jungle primary {partial $}, that is. What I found rather amazing was that nobody called out clear (and, to my mind for one of them, disqualifying) conflicts of interest in four of the candidates. And, to be perfectly clear: "Conflict of interest" includes "running for limited-scope office when the candidate or family is A Player within that limited scope." It's not all one faction, either…

• In an almost Kafkaesque twist, Orwell's archives may disappear, bit by bit — perhaps not into the Ministry of Information where one can dial up past issues of The Times for, umm, retrospective editing, but nonetheless to even-less-trustworthy custodians than at present.
• Unfortunately, the problems with Orwell's archives are merely symptomatic of shortsighted, standard-accounting-friendly (in an industry group for which accounting standards apply, realistically, to less than a third of its activities) inept or worse (sometimes outright corrupt) management seeking marginal advantages for corporate bottom lines without actually engaging with the material. Leadership means, first of all, that one must engage with and try to fully understand both the substance and the people…
• …like Medal of Honor winners. Perhaps that's because Medal of Honor winners, as a group, tend to disrespect draft dodgers from a family with a history of dodging the draft in multiple nations, so they don't show "the respect that is due." Even more likely, it's because that individual — consciously or unconsciously — disdains sacrifice for others. I've been unable to identify a single such sacrifice in his public biography; anything even close to it was for his own benefit more than for others. And that is the antithesis of the Congressional Medal of Honor… too, the Presidential Medal of Freedom.
• An opinion column suggests that students should study the arts and humanities if they love them — because (good and perceptive) employers already do. Although I agree with the conclusion, the piece aims at the wrong target. Before and at the college/university level, STEM studies are not "the enemy" of the humanities. At least until the graduate-school level, both STEM and humanities (grudgingly, most social sciences, too) are about preparation to learn more, to adapt to and improve circumstances as actually dumped in one's lap. Consider, for the moment, the utterly brilliant programmer who is unable to write coherent documentation, leading others to misunderstand and misuse her work; the claims processing civil servant (or insurance adjuster!) who spots some "common problems" but can't analyze their prevalence well enough to determine the appropriate scope of any policy change; the nine lawyers who can't understand basics of molecular genetics but opine (fundamentally incorrectly) on their partial patentability anyway.

  The enemy is monomania, not any particular field of study, although I'd probably make an exception for marketing and "business administration" — even more than the athletics department. Of course, as a holder of degrees across the curriculum I would say that, wouldn't I?

Non-demicentennial

Fifty years ago today, a coarse, egotistical, mean-spirited, (probably) irredeemably-corrupt asshole demonstrated at least some commitment to distinguishing himself from the office he held. At least some understanding that the exercise of power through sycophants who did not actually speak truth to power — all later "rehabilitation" of the White House Counsel and others to the contrary — had limits.

The Republic was saved…

…for a while. A hair short of half a century later, sycophants denied (PDF) almost every significant aspect of the distinction between "office" and "officeholder," among "policy objective" and "official duty" and "acceptable means of asserting either."

The Republic is in jeopardy. And on 05 November, all American citizens eighteen years old and above (who have not been excluded from voting by aspects of felony convictions — which, curiously, includes a much higher proportion of "other Persons" than descendants of "free Persons") have three fundamental duties. And privileges.

1. Register (on time) to vote; or, if already registered, confirm the accuracy of your registration.
2. Consider both the policy preferences embedded in party designations and the characters of the individuals appearing on your ballot.
3. Vote, including using write-in capabilities as provided by law and mandated by conscience and point 2 above.

I have my obvious preference at the top of the ballot: That we do not have our own Glorious Revolution, reify another House of Orange via Divine Right, and set the stage for another revolution. But I will engage only in peaceful persuasion — not violent insurrection or slightly less overt voter intimidation.

All the while, I will curse the disloyalty of six sycophants to power. That, however, is all that I will do, because means used shape the ends achieved. Would that those six individuals had paid attention to TV screens (during school holiday periods, no less) half a century ago, when a member of their own partisan faction/tribe displayed that he had at least some [expletive deleted] understanding of that.

Standard of Review

Justice Kagan has mused that perhaps — just perhaps — the Supreme Court's mild suggestions on ethics should be enforceable, and perhaps inquired into by a "special committee" of seasoned, respected lower-court judges. Naturally, the Mouth of Sauron the WSJ editorial board is vehemently opposed. This particular board includes not one lawyer (or even holder of a law degree who never practiced); not one individual who has ever been part of a corporation's special litigation committee evaluating a lawsuit (or personnel matter) involving conflicts of interest by one or more members of the full board; not one individual who has ever been part of an organization (such as, but far from only, the US military) with an effective, independent Inspector General system. They clearly don't understand that an IG, which is what Justice Kagan describes (albeit not by that name), doesn't make final decisions, but instead makes recommendations of varying strength based upon the facts discerned in particular incidents. But then, given the particular biases of the WSJ and its ownership, "credible, effective government" isn't their highest priority in the first place… and they don't understand "review and recommend" and how that actually reinforces the independence of decisionmakers (nor do they care).

I have reviewed and recommend extreme skepticism regarding Judge Ho's latest extrajudicial attempt to claim victimhood — but that's all it is. Whether his remarks call into question his ability to be unquestionably impartial on matters raising issues that he has ideologically, umm, prejudged is not for me to decide; it is, however, for me to suggest that the stated factual record does not support his conclusion, particularly when it includes all of the data from the lab (let alone evidence gathered in the field).

Oops. I think I've just betrayed my own decisional framework: That when the data either fails to support prevailing decisional frameworks or even outright undermines them, continued unthinking reliance on those prevailing decisional frameworks is unjustified. Is theocratic. Is downright stupid. The scientific method cannot determine all decisions in human affairs; that way lies strictly numeric, non-context-sensitive "solutions" to the Trolley Problem (that neglect what the Trolley Problem does to those not in the frame, particularly the driver whose trolley has been diverted onto that track, not to mention the maintenance guys who know damned well that parts fail and blame themselves when they do). It's a bit of a chicken-and-egg problem: Determining what data matters requires some reference to decisional frameworks, like accepting that it's the feather's nonzero mass and local gravity that determine how quickly it will fall in a vacuum and not its color or species of origin or, well, featherness.

Too much decisional ideology, however, pays a lot more attention to the beautiful plumage of the Norwegian Blue than it does the bird's life status. That pathway leads to self-inflicted wounds based on the bigotry of (in-practice-unreviewable) decisionmakers.¹ And that brings us back to Justice Kagan's suggestion that appointed-for-life-on-good-behavior members of the otherwise-unreviewable court should be subject to some review short of the high crimes and misdemeanors that lead to impeachment. The precise mechanism will matter to merits and workability, but the concept is sound, particularly in a context in which judges in general do not recuse enough (let alone clearly).

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1. We shall leave for another time the self-reinforcing structures that both put unsuitable persons in those roles and exclude the Other (however well suited). Not that I'm also questioning overreliance on three or four law schools as comparable to overreliance on two (now three) military academies or anything like that, or questioning how prior stovepiping of candidates when they're 18 (or 21) can be counterproductive when considering actual decisionmaking in their fifties and sixties. Or how that early judgment of potential presumes a good basis for that judgment and the suitability of those doing the judging to do so. Oh, wait, maybe I am…

Not in the Record

I am going to do something up front here that the worst decision issued by the Supreme Court in the last few weeks — and it had substantial competition for that dubious distinction — couldn't be bothered to do: State my a priori assumption so that it may be accepted — or tested. That a priori assumption is:

The exercise of the judicial power (U.S. Const. Art. 3 § 1), whether by a court of review or a court of first instance, requires that each fact relied upon in that exercise be of record — admitted evidence, reliance upon established consensus propositions not otherwise refuted, or binding legislative findings of fact that have met the same standards.

The decision in Trump v. United States, No. [20]23–939 (01 Jul 2024) (PDF >100 pages), is inconsistent with that premise.

The majority opinion presumes that absent immunity, a President will be impaired in performing the official acts necessary to the office's function by fear of later prosecution. Chief Justice Roberts rather buried the lede:

The hesitation to execute the duties of his office fearlessly and fairly that might result when a President is making decisions under “a pall of potential prosecution,” McDonnell v. United States, 579 U.S. 550, 575 (2016), raises “unique risks to the effective functioning of government,” Fitzgerald, 457 U.S., at 751. A President inclined to take one course of action based on the public interest may instead opt for another, apprehensive that criminal penalties may befall him upon his departure from office. And if a former President’s official acts are routinely subjected to scrutiny in criminal prosecutions, “the independence of the Executive Branch” may be significantly undermined. Vance, 591 U.S., at 800. The Framers’ design of the Presidency did not envision such counterproductive burdens on the “vigor[]” and “energy” of the Executive. The Federalist No. 70, at 471–472.

Trump at 21 logical/13 literal (brackets in original). The critical phrase — one resembling the nail for want of which the kingdom was lost — is in the middle of the second sentence of that passage: "…may instead opt for another, apprehensive that criminal penalties may befall him…"¹ This premise fails on both logic and the vast breadth of historical evidence. It's not that I dissent: It's that reality does. This hypothesis is not fact, and is not based on any evidence in the record — quite the contrary.

Consider, for a moment, the behavioral mechanism assumed to be in operation: That the potential for criminal penalties is both necessary and sufficient to restrict an otherwise-contemplated action by the President. But it didn't deter President Nixon from both conspiring to cover up a crime² and engaging in unlawful electronic recording.³ It didn't deter other officials from multiple schemes violating multiple statutes in the 1980s. In a broader sense, it hasn't deterred any of the war crimes committed across the world since the close of the Nuremberg proceedings (more than a few by, or in conspiracy led by, heads of government/state). Further instances are not necessary to refute the purported behavioral impetus as either necessary or sufficient. The flip side is, of course, worse: What do those entrusted with absolute power not subject to later examination or question do with it? Didn't the US just celebrate a "holiday" yesterday exemplifying that problem?⁴

Also relevant but neglected, consider the particular conduct alleged in this matter: Fomenting of violent insurrection opposing election results and interference with operation of the electoral system — both with a conflict of interest that would require recusal of a judge.⁵ If anything, election integrity requires rejection of conflicts of interest more than any other aspect of a representative democracy.⁶ Indeed, this is precisely the kind of action for which any representative democracy should demand that officeholders "opt for another" "course of action." This bit of questioning of authority in the context of a court of law considering criminal penalties, of speaking truth to power, is anything but "routinely subject[ing conduct] to scrutiny in criminal prosecution[]" — despite past opportunity. <SARCASM> Oh, wait, actually reading the indictment isn't necessary to advise such broad immunity principles. </SARCASM>

Our system embedding separation of powers; our rejection 248 years ago this week of a tyrant wielding absolute power not subject to later examination; the reality that those with great power are not deterred from exercising it "just" by criminal penalties — all counsel against immunity. Instead, any deterrence must come from their own character and their respect for the form and the substance of Constitutional government. Better still, we should elect candidates of such character that "deterrence" would be superfluous; and, when we don't, we must remain open to retrospective corrective actions not to deter them — but to deter others.

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1. To even reach this flaw, one must pretend — as did Chief Justice Roberts and the majority — that there is no legitimate relationship between "ends" and "means" relevant to exercise of executive powers, once one determines that those powers are being exercised in an official capacity. The entire point of the Nuremberg proceedings is that as a matter of international law and basic humanity, that is not correct. Indeed, the secession of the colonies from the United Kingdom two and a half centuries ago demonstrates that as a matter of basic principles of governance and the Rights of Man, that is not correct. Once one acknowledges that "ends" and "means" are not completely independent — that desired (or even acceptable) ends limit the means that can be employed; that means employed limit the ends that can actually be achieved — a purported right to never be questioned becomes untenable, and especially so when the means subject to question facially appear criminal in substance. The true protection available to a President who, on perceived grounds of necessity, engages in otherwise-criminal conduct (or conspiracy) in implementing an exclusive Presidential power is not immunity, but a vigorous defense.
2. Cf., e.g., 18 U.S.C. § 4 (1948, amd. 1994). There is little question that if the person so charged is him/herself a "judge or other person in civil or military authority," illusory reporting to one's self is not sufficient.
3. Cf. 18 U.S.C. ch. 119 (1968 as amd.).
4. Ironically, the nation that inspired this, and even the very concept of a fair and free election of the head of government and head of state, went to the polls yesterday (on the mistaken anniversary celebrated by the US) and replaced its head of government.
5. 28 U.S.C. § 455. Indeed, as to this particular electoral issue, virtually all of the mandatory grounds for recusal laid out in subsection (b) would apply, and regarding any hypothetical interference with elections at least (1), (2), (3), and (5)(i) in even the most innocent of circumstances. If, that is, there can be "innocent circumstances" for overturning the result of an electoral count based on the candidate's personal perception that it was impossible to lose without an evidentiary basis for that belief. (Darn, that pesky "facts not in evidence" problem again…) Even that discounts conflict-of-interest problems; and there can be no clearer quid pro quo than "altering election results" leading to "continuing in electoral office," at any level.
6. Cf., e.g., 18 U.S.C. §§ 595, 610, 2383. As to that last item: The entire point of secession from the United Kingdom was to deny the legitimacy of l'etat c'est moi — the person is not the office.

Precedent

Yesterday's self-inflicted wound by the Supreme Court — and should the Republic survive another quarter century, the decision in Trump v. United States, No. [20]23–939 (U.S. 01 Jul 2024) (PDF, large file), will be viewable only as a self-inflicted wound similar to Dred Scott, Plessy, and Korematsu — reflected the worst kind of tunnel vision. I won't waste my time and effort on a detailed analysis, especially since this blawg is far from the appropriate forum. Two points that will probably be neglected do deserve at least some mention (if only so I can say "I told you so!" later).

1. The majority opinion cites with great approval, on several occasions, short passages from Justice Robert Jackson. Most of them, however, missed the point; missed Justice Jackson's other role, one specifically dealing with high-official misconduct (the Chief Executive in question was, umm, not available to be tried — but would have been so tried if possible).

At the very outset, let us dispose of the contention that to put these men to trial is to do them an injustice entitling them to some special consideration. These defendants may be hard pressed but they are not ill used. Let us see what alternative they would have to being tried.

More than a majority of these prisoners surrendered to or were tracked down by the forces of the United States. Could they expect us to make American custody a shelter for our enemies against the just wrath of our Allies? Did we spend American lives to capture them only to save them from punishment? Under the principles of the Moscow Declaration, those suspected war criminals who are not to be tried internationally must be turned over to individual governments for trial at the scene of their outrages. Many less responsible and less culpable American-held prisoners have been and will continue to be turned over to other United Nations for local trial. If these defendants should succeed, for any reason, in escaping the condemnation of this Tribunal, or if they obstruct or abort this trial, those who are American-held prisoners will be delivered up to our continental Allies. For these defendants, however, we have set up an International Tribunal and have undertaken the burden of participating in a complicated effort to give them fair and dispassionate hearings. That is the best-known protection to any man with a defense worthy of being heard.

If these men are the first war leaders of a defeated nation to be prosecuted in the name of the law, they are also the first to be given a chance to plead for their lives in the name of the law. Realistically, the Charter of this Tribunal, which gives them a hearing, is also the source of their only hope. It may be that these men of troubled conscience, whose only wish is that the world forget them, do not regard a trial as a favor. But they do have a fair opportunity to defend themselves-a favor which these men, when in power, rarely extended to their fellow countrymen. Despite the fact that public opinion already condemns their acts, we agree that here they must be given a presumption of innocence, and we accept the burden of proving criminal acts and the responsibility of these defendants for their commission.

When I say that we do not ask for convictions unless we prove [the] crime, I do not mean mere technical or incidental transgression of international conventions. We charge guilt on planned and intended conduct that involves moral as well as legal wrong. And we do not mean conduct that is a natural and human, even if illegal, cutting of corners, such as many of us might well have committed had we been in the defendants’ positions. It is not because they yielded to the normal frailties of human beings that we accuse them. It is their abnormal and inhuman conduct which brings them to this bar.

Opening Statement to the International Military Tribunal ("Nuremberg Trial") (21 Nov 1945).

2. Leaving aside other examples of "official acts" by heads of government as excessively inflammatory — just in the last century, Iosef Dzhugashvili, Saloth Sâr, Augusto Pinochet, and our semipuppet Ferdinand Marcos — the Court needlessly conflated "immunity" with "absolute defense." Further, it did/does so precisely by ignoring another American text, also seeking legal process concerning purported "official acts."

[T]he present King of Great Britain…

…has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people[;]

…has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within[;]

…has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries[;]

…has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance[;]

…has has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

United States Declaration of Independence (02-04 Jul 1776) (in part, in this order).¹

The near decade of warfare thereafter — in structure, function, and intent a civil war — demonstrates rather well that whether particular acts of a head of state are "official acts" or "the establishment of an absolute Tyranny over these States" cannot be judged in advance. They are simply not amenable to the broad, overreaching conception of "absolute immunity," because conduct that has the purported end of an "official act" may clearly be done through inappropriate means — means that entirely swallow the official-act ends.

•  •  •

Perhaps this Court had a failure of the imagination. Perhaps this Court failed to engage with the pervasiveness of post hoc rationalizations among tyrants. Perhaps this Court abstracted its reasoning too far from the particular "official acts" at issue, without ever considering when conflicts of interest and overt abuses of power make those acts less than official even when cloaked in officialdom. Perhaps most of all this Court failed to engage with history of both itself and of this nation.

Perhaps.

Regardless, this decision is wrong on the date of issue.

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1. That bit of racism at the end is also part of our history in this nation. It's definitely worthy of remembrance, now, two hundred forty-eight years later almost to the day.