Posted by Anderson

I’m not asking him to be ‘with us’; I’m asking him to be against Bush. If he’s not, then he should publicly recant any and all libertarian beliefs.

Oh, and how his “sense of the threat” (which he spends half of the 2nd paragraph dwelling on) factors in this conclusion is anyone’s guess. The Al Qaeda is ‘somewhat’ likely to plant a bomb in America, therefore the new legislation is appropriate?

And most importantly, despite waxing lyrical over how “we’re talking policy here, not law”, there’s totally zero discussion on whether the measures actually make things safer? 9/11 wasn’t even coordinated or conducted by means of any sort of Internet or phone communication, so where in the nine hells does anyone get the idea that monitoring people’s phone calls and e-mail will prevent another 9/11? Kerr’s arguments are totally tosh.

(Now Anderson can feel free to address this important issue of national security by launching some cheap potshots…)

I have seen too many people reduce everyone else to a “with us or against us” caricature, however.

Prior restraint in the past has taken the form of court-issued injunctions (albeit ex parte against disclosure backed by the threat of contempt sanctions. The courts did not order persons imprisoned and denied communication.

The partial exception has been the accused in espionage cases in which the government has demanded that all communications—including those with attorneys—be monitored (e.g. King, Ho). Here, at least, they had consented to see information, and the restrictions (not bans) were designed to prevent furthering the crime for which they had been accused. In the terror detainee case, the crime is terrorism, not espionage, and there was no consent.

The same is true in a different way of Randy Barnett, whom I disagree with volubly on most things that he blogs about, but who seems intellectually consistent and thoughtful. Some people who ‘seem’ reasonable actually are reasonable – that doesn’t mean that any convergence of views is likely anytime soon, but it also doesn’t mean that reasonableness is a shtick, and nothing more than a shtick.

Their difference with other professional wrestlers, though, is they always seek to sound reasonable rather than nuts. Nothing wrong with that, but one of the things that has enabled this administration and its apologists to go so far is that they have mastered the art of saying things that belong on pro wrestling in the tone suited to sagacious thought. They sound reasonable without actually deploying reason. This, I think, reflects a broad cultural problem: we have come to think of “reasonability” as a style rather than a substance.

And, he;’s a wh*re. Choice quotes:

“Some will think the new legislation is tepid; others will think it signals the coming of the National Surveillance State. Some people think Al Qaeda is about to nuke America, and others think Al Qaeda poses no threat at all. ”

Nice comment for a journalist, who seeks ‘balance’ over all. For a f*cking lawyer, who’s allegedly a libertarian, it’s capitulation to power.

“My own preferences and sense of the threat are both somewhere roughly in the middle (or so I think—it’s hard to guess exactly what the distribution is). ”

This follows the ‘some think…others think…’ quote before.

Again, purest BS. Only a fool prides himself on finding the truth by ‘averaging’ two viewpoints. Is that his attitude towards other constitutional protections? Towards being robbed (‘I think that I was robbed; the guy with the gun and my money thinks that I gave it to him’?).

“The second change is a requirement of a formal authorization of a program to do such monitoring. The Director of National Intelligence and the AG have to approve a program (for up to one year) reasonably designed to be limited to the monitoring of persons outside the United States.”

Um, has this guy been on vacation for the past six years? Doesn’t he know who and what the AG is, what sort of stuff has leaked out about what they’ve been doing?

In the end, Jim Henley should modify his post about Eugene Volokh’s default position being the feigned reluctant support of whatever the GOP wants, to include Orin.

Posted by Andrew

Sums it up quite nicely.

http://volokh.com/posts/1186332672.shtml

“My own preferences and sense of the threat are both somewhere roughly in the middle (or so I think—it’s hard to guess exactly what the distribution is). Based on those preferences and sense of the threat, as well as my initial read of the legislation, I think this legislation on the merits is relatively well done.”

Perhaps authoritarianism is characteristic of the culture of law enforcement everywhere, but it’s less contested in America than in contemporary Europe, or so I’ve been led to believe.