Greenwald v. Kerr

by Henry on April 1, 2010

Something that I should have said the first time we went around this particular merry-go-round, but didn’t (because I didn’t see it until some days after it had happened), and want to say now that we seem to be going around it again. Glenn Greenwald’s animus towards Orin Kerr is perhaps unsurprising (Kerr’s politics are very different from Greenwald’s, and his personal style is as dissimilar from Greenwald’s as can be) but is not especially well justified by the facts. Greenwald has repeatedly depicted Kerr as an “apologist” for Bush administration policies (disclosing that Kerr has not been an apologist “all” such policies, but notably failing to mention that Kerr was on many occasions an explicit critic of the Bush administration, and of various conservative arguments made on its behalf) in a manner which is both offensive and untrue. It’s quite clear that Kerr is (moderately) conservative – it is also clear from even the most superficial reading of his blogging and writing that he is neither doctrinaire, nor prepared to defend legal doctrines or arguments that he doesn’t himself believe in. Perhaps Greenwald means by “apologist” something like “someone who advocates for policies which I strongly disagree with.” If so, he should use more neutral language. If he intends to convey something more like the everyday meaning of “apologist,” which carries insinuations of dishonesty and hackery, he can do so of course – but it would be nice to see some evidence supporting this claim.

If Greenwald responds to this, it’s not impossible that he’ll respond in the same way as he has done to Kerr – through a fairly direct personalized attack on my motives in writing this defence. To anticipate one possible line of attack – Kerr is nominally a colleague of mine (he is employed by the same university). That doesn’t mean that I know him well – I have seen him perhaps once in the last five years, and have not (as best as I can recollect) had any other exchange with him during that period. He did come once to talk to a class I was teaching shortly after I arrived at GWU. However, my relations with him could best be described as friendly, but not close, and most importantly mediated through shared membership of a collective community (the blogosphere). Which is to say that they are more or less similar to my past relations with Glenn Greenwald (with whom I have very occasionally exchanged amicable emails). In short – the reason I want to defend Orin Kerr is because I find his online writing thoughtful and interesting (I have rather different feelings about some of his colleagues on the Volokh Conspiracy). While I’ve absolutely no problem with strong partisanship, it’s necessary, in the end of the day, to recognize that we live in a plural society with competition over values, in which the other guys are going to win, at least some of the time. I would frankly far prefer to live in a world where at least some of the other guys thought like Orin Kerr than one where they thought like, say, Marc Thiessen. Claiming that everyone on the other side of the intellectual divide is a dishonest hack seems to me to be an exercise in self-flattery and wishful thinking. It also means that one doesn’t have to learn from people whom one strongly disagrees with (this kind of learning is often unpleasant for exactly the same reason that it is valuable). I don’t know if Glenn Greenwald thinks that the people on the other side are all hacks (I’m mostly bringing it up because a couple of our commenters have made suggestions along these lines in the past). But I suspect that the reason that Kerr so gets on his nerves is precisely because he argues for a greater deference towards the state than Greenwald would like, but is not, obviously, a Thiessenesque hack. For me that’s a feature, not a bug.

[nb that this is a personal blogpost, does not by any means necessarily represent the views of other CTers, some of whom undoubtedly take a more vigorous line on this, etc]

{ 503 comments }

1

soullite 04.01.10 at 5:05 pm

You actually can disagree with someone on some issues and still be an apologist for them. A lot of Republicans didn’t agree with a lot of things Bush did, they still pretend all of that is awesome.

You people always think you can take whatever position you want, and that it should never come back to haunt you. Life doesn’t work that way. You are judged by the things you have done in the past, and rightly so. You are judged by the arguments you make, and if you don’t want to be judged by those arguments, then don’t make them. This is not some philosophy class, this is the real world. This is how the real world works. You don’t get to make hypothetical arguments, and then say you did them out of some sense of ‘duty’ and should not be held accountable for those arguments.

He deserves to be judged for that, regardless of whether or not this man is a friend of yours or not. Personal insults are the least of what this man deserves. He deserves the collective contempt. Having a law degree doesn’t absolve you of being a human being.

2

Kieran Healy 04.01.10 at 5:07 pm

does not by any means necessarily represent the views of other CTers, some of whom undoubtedly take a more vigorous line on this, etc

True. I, for one, think you are a dishonest hack. Not that I should expect anything less from a Blueshirt.

3

Elvis Elvisberg 04.01.10 at 5:14 pm

Greenwald calls Kerr “a sometimes-Bush-apologist” in today’s column. That seems uncontroversial, and not really very much like an insult at all.

Do you disagree with anything in the argument that Greenwald makes? He maintains that Kerr is mistaken in his arguments as to the ruling yesterday.

I’m actually sympathetic to your broader point that Greenwald can sometimes be a bit adjective-heavy in his critiques, but I really don’t see it here. What’s more, Greenwald is that last person with a “my side or your side” view of the world. He never hesitates to criticize anyone in either party.

4

Hidari 04.01.10 at 5:16 pm

‘(T)he reason I want to defend Orin Kerr is because I find his online writing thoughtful and interesting…’

Yeah, but Lillies that Fester………….

5

aaron 04.01.10 at 5:21 pm

I like how you argue against Greenwald by complaining that he gives no evidence and then say that his argument is “offensive and untrue” without giving any evidence.

The post that GG linked to argued that since the fourth circuit court would produce a *policy* ruling that was unacceptable (that it becomes impossible to charge someone legally after having ignored their constitutional rights), the Supreme Court will overturn it. He doesn’t quite say that he thinks they should, of course, but the policy > law consideration is pretty basic to its logic; there just isn’t any other way to read that argument except as tacitly approving a ruling that prioritizes the government being able to do whatever it wants to people it decides to be terrorists rather than obeying the law, and he even invents a completely hypothetical scenario to do it. That is what being an apologist for Bush policies looks like.

6

rickm 04.01.10 at 5:22 pm

“You actually can disagree with someone on some issues and still be an apologist for them.”

Yes but you can’t simulatenously be an apologist for a specific policy and vociferously disagree with said policy.

7

Glenn Greenwald 04.01.10 at 5:31 pm

<>

There’s nothing to respond to. Each time I criticize Kerr — including today — I do so by citing and documenting very specific flaws in his arguments. Today, for instance, I explained why his attacks from two years ago on Judge Diggs Taylor were grounded in total ignorance about what she ruled, and that in any event, what he said then completely contradicts what he said today about Judge Walker’s ruling.

Even if I wanted to respond to you, I wouldn’t be able to. What you wrote is totally devoid of substance. In defending Kerr, you don’t even mention, let alone refute, the substantive criticisms I’ve made about him.

You like Kerr and think he’s “moderate” and reasonable. That’s nice. But that’s not how I write. Whether I like Kerr or not — and whether I agree with his politics — is totally besides the point; it doesn’t enter my calculus. When he writes things that are correct, I credit him and say so (as I’ve done before — see here: “Law Professor Orin Kerr offers some speculation on that question which strikes me not only as persuasive, but also as the only logically possible answer.”). When he writes things that are wrong, I criticize him and say so with very specific reasons (as I did in the posts you cited, including the one today).

You’ve personalized these discussions in a very strange way that reflects on you but not on me. If you want to defend Kerr, feel free. There’s nothing wrong with that. But to do it in a way that’s coherent and rational, you need actually to engage the arguments. If you want to prove I’m wrong, you have to refute my analysis and show the errors. Throwing around Hallmark Card sentiments about how nice and reasonable and moderate Orin Kerr is doesn’t accomplish anything.

8

rea 04.01.10 at 5:37 pm

With all due respect, Greenwald did not simply attack Kerr personally, for his motives. He addressed, in some detail, the substance of Kerr’s arguments, such as it was. The Kerr/Greenwald dispute is, to a considerable extent, a dispute between lawyers over technical issues, and even an intellegent, educated nonlawyer like Henry may not appreciate the extent to which Kerr’s position is, objectively, transparent bs.

9

chuchundra 04.01.10 at 6:00 pm

The real question is will Glenn make an appearance in the comments and call everyone an Obama Cultist

10

jdw 04.01.10 at 6:09 pm

a·pol·o·gist (-pl-jst)
n.
A person who argues in defense or justification of something, such as a doctrine, policy, or institution.

11

Glenn Greenwald 04.01.10 at 6:13 pm

“If Greenwald responds to this . . . “

There’s nothing to respond to. Each time I criticize Kerr—including today—I do so by citing and documenting very specific flaws in his arguments. Today, for instance, I explained why his attacks from two years ago on Judge Diggs Taylor were grounded in total ignorance about what she ruled, and that in any event, what he said then completely contradicts what he said today about Judge Walker’s ruling.

Even if I wanted to respond to you, I wouldn’t be able to. What you wrote is totally devoid of substance. In defending Kerr, you don’t even mention, let alone refute, the substantive criticisms I’ve made about him.

You like Kerr and think he’s “moderate” and reasonable. That’s nice. But that’s not how I write. Whether I like Kerr or not—and whether I agree with his politics—is totally besides the point; it doesn’t enter my calculus. When he writes things that are correct, I credit him and say so (as I’ve done before—see here: “Law Professor Orin Kerr offers some speculation on that question which strikes me not only as persuasive, but also as the only logically possible answer.”). When he writes things that are wrong, I criticize him and say so with very specific reasons (as I did in the posts you cited, including the one today).

You’ve personalized these discussions in a very strange way that reflects on you but not on me. If you want to defend Kerr, feel free. There’s nothing wrong with that. But to do it in a way that’s coherent and rational, you need actually to engage the arguments. If you want to prove I’m wrong, you have to refute my analysis and show the errors. Throwing around Hallmark Card sentiments about how nice and reasonable and moderate Orin Kerr is doesn’t accomplish anything.

12

mds 04.01.10 at 6:15 pm

[Waves away incense cloud arising from office Barack altar]

…Sorry, what?

13

aaron 04.01.10 at 6:18 pm

I have to disagree, Rea; Kerr’s argument is transparent BS to even a non-lawyer.

His argument (in this post, is you’re interested) boils down to the assertion that when an illegal police search turns up evidence of terrorism, to hold that evidence to be inadmissible because of the illegality of the search would be “completely bizarre.” He invents a ridiculous hypothetical scenario in which cartoonish terrorists confess their plot to security cameras (to make everything seem as clear cut as possible), but forthrightly admits that “the evidence against the cell members was obtained in violation of the Fourth Amendment” because the whole point of his hypothetical scenario is to defend illegal police searches, to argue that the law doesn’t apply when it comes to terrorists. That’s an argument?

I note with amusement, too, that even in the hypothetical situation Kerr imagines, the only reason the local police were even called was that a hotel employee saw “a group of Arab men in the hotel staying in one room and acting very secretively.” That’s it. On that basis, Kerr argues it to be justified to ignore the Bill of Rights. Do you know how many paranoids call the police every day on the basis that they saw an Arab acting “suspiciously”? But apparently for the law to protects the rights of Arabs is “incredibly bizarre” to Kerr.

14

Russell L. Carter 04.01.10 at 6:38 pm

Yeah, this is a bit of an oddball post. Almost as if it was GWU’s reputation that was being defended via proxy. Personally, I rate Kerr at about 50% on the hackitude scale, which is much much better than some of his blog fellows. He’s got some real issues when it comes to defending SCOTUS decisions, especially the motivations. OTOH, he’s much better on torture than say EV.

15

Marc 04.01.10 at 6:47 pm

Greenwald has descended into categorical binary thinking. It’s truly a shame, as I have considerable sympathy for an uncompromising position on civil liberties. But I no longer find his commentary trustworthy. I went back to the original offending post, for example, here:

http://volokh.com/archives/archive_2006_08_20-2006_08_26.shtml#1156190208

I disagree with Kerr on the merits, but it is very hard for me to read the above as some sort of apologetic for unlimited government power. That is very different from some other arguments in the public sphere which are clearly made in bad faith – for example, the various lawsuits against the newly minted health care legislation.

I do appreciate that the tenor of his response here is a marked improvement over what I’ve seen recently in other contexts, and I’m glad to see it. But the liberal commentariat got into some very sloppy good vs. evil/five minute hate habits during the Bush years, and we will have to actively work against the reflexive habit of assuming ill motives behind actions which we dislike.

16

WharfRat 04.01.10 at 7:02 pm

It’s pretty clear that there’s a lot more seething underneath this post than simply an attack on someone whose writing you find interesting and thoughtful. I think Greenwald is a particularly egregious example of writing about politics that is frustratingly light on empathy, and goes quickly to a register that makes me stop paying attention altogether. I find myself incredibly disturbed on the daily about the war crimes of the Bush adminstration, and I also find myself simply rolling my eyes when statements like “…if we were a country that lived under The Rule of Law [sic]” start getting tossed around. Having lived in countries with much weaker central states that couldn’t enforce The Rule of Law, I think this particular style of hand-wringing is provincial and immature. If someone breaks into my home, I still call the police, who I can safely presume won’t use the call as an opportunity to case my house or demand a bribe; I don’t chart my drive home based upon the route that I hope will have the fewest prowling police cars looking to shake me down. That’s what a country without The Rule of Law looks like. Let me be clear, I’m incredibly disturbed by (almost) all the things that disturb Greenwald, and I’m happy that he’s making a bunch of noise about it. Yet, it’s all ultimately noise and even someone like me whose sympathetic can’t really take it seriously.

Even if this particular attack on Kerr is justified, I rather understand (and endorse) the desire to caution a little empathy in the face of such displays of hyperpartisanship.

17

mds 04.01.10 at 7:10 pm

I disagree with Kerr on the merits, but it is very hard for me to read the above as some sort of apologetic for unlimited government power.

How about the post aaron almost linked to (there’s a trailing “), in which the Fourth Amendment goes poof once the magical word “terrorism” is invoked?

And yes, Greenwald tends to think in binary terms. But when it comes to encroachment on civil liberties, being “about 50% on the hackitude scale” (as Mr. Carter puts it) means that you’re not actually a defender of civil liberties. I know I wouldn’t want Kerr defending me if the federal government claimed I was a terrorist. Heck, they could show him purported evidence that I wanted “the streets to run red with Swedish blood,” and he’d apparently hang me himself.

18

aaron 04.01.10 at 7:12 pm

Marc,
That was the article I was talking about. How is he arguing anything other than that “good policy” (as he defines it) trumps “good law”? I can’t find anyway to read that article as saying other than that the police don’t have to obey the law when the alternative would be the possibility of a terrorist going free, which is to say, the law is a dead letter when the state needs it to be . That certainly seems like an apologetic for unlimited government power to me (at least when it comes to Arabs deemed to be “suspicious”). How do you disagree with that assessment?

19

parse 04.01.10 at 7:15 pm

If he intends to convey something more like the everyday meaning of “apologist,” which carries insinuations of dishonesty and hackery, he can do so of course – but it would be nice to see some evidence supporting this claim.

Apologist doesn’t carry those insinuations for me. The definition quoted @7 pretty much corresponds to my understanding of the term. I wonder if this is true for many others or if I’m an anomaly in this regard.

20

Glenn Greenwald 04.01.10 at 7:26 pm

I disagree with Kerr on the merits, but it is very hard for me to read the above as some sort of apologetic for unlimited government power.

I documented all the times Kerr defended “unlimited government power” in the update <a href="http://www.salon.com/news/opinion/glenn_greenwald/2008/11/05/supreme_court/index.html"<here, including his defense of the President’s power to imprison even those detained in the U.S. indefinitely and without charges. If that’s not a defense of unlimited government power, then nothing is.

21

Glenn Greenwald 04.01.10 at 7:27 pm

I disagree with Kerr on the merits, but it is very hard for me to read the above as some sort of apologetic for unlimited government power.

I documented all the times Kerr defended “unlimited government power” in the update here, including his defense of the President’s power to imprison even those detained in the U.S. indefinitely and without charges. If that’s not a defense of unlimited government power, then nothing is.

22

Bill Gardner 04.01.10 at 7:30 pm

Kieran, what’s a Blueshirt?

23

Bill Gardner 04.01.10 at 7:33 pm

My apologies: Wikipedia has it covered.

24

Rich Puchalsky 04.01.10 at 7:52 pm

April Fools! I’m so glad that this funny post appeared on April 1: otherwise it would have seemed yet another example of the contentless defense of any conservative who happens to be respectable against those horrible hippies who are destroying plural society and its competition over values by being so one-sided about those picky little legal issues about torture. I especially enjoyed the presentation of the post’s author as one of the few who can appreciate people on the other side of the intellectual divide, and how that is contrasted with the “self-flattery” of people unlike the author.

25

someguy 04.01.10 at 8:06 pm

7 & 15.

That would make all of us Bush apologists. Well, if we had the opportunity. Certainly there was some policy from the Bush adminstration that you would have supported. We are talking about 10000s of policies.

I think the DOJ’s case is weak but I disagree with Judge Taylor’s legal reasoning in the ruling does not equal Bush apologist or defender of unlimited government power.

26

Bloix 04.01.10 at 8:38 pm

“While I’ve absolutely no problem with strong partisanship”

Greenwald is not “partisan.” No one has been stronger in attacking the Obama administration for its abandonment of civil rights under the guise of fighting terrorism. The very post Henry criticizes is an attack on the Obama administration.

This phony description of the debate between Kerr and Greenwald as “partisan” is the usual both-sides-do-it “balance.” It’s not something I would have expected of Henry or of this blog.

And yes, Greenwald does think in binary terms, but they’re not partisan terms. He thinks in terms of the rule of law versus arbitrary power. The rule of law is not an extreme position, regardless of what Obama’s DOJ lawyers would like to argue, and it’s nice to have at least one person making the point that the good will of our rulers is not the same as liberty.

27

Henri Vieuxtemps 04.01.10 at 8:54 pm

Also, Wolf Blitzer looks like a nice guy.

28

Elijah 04.01.10 at 8:59 pm

As goes DeLong, so goes Henry.

D-squared take it away:

“Why are American liberals so damnably obsessed with extending intellectual charityto right wing hacks which is never reciprocated? It reaches parodic form in the case of those tiresome “centrists” who left wing American bloggers are always playing the Lucy-holds-the-football game with. Oh, but their politics are sooo centrist! They’re practically 50% of the way between Republicans and Democrats! Yeah, specifically they’re right-wing Democrats in non-election years and party line Republicans any time it might conceivably matter (note that here, two years after the White House ceremony at which Friedman apparently “spent most of his 90th birthday lunch telling Bush that his fiscal policy was a disaster”, here he is signing a letter in support of more of the same).”

More:

“….If it was just pure scholarly decency that made Yank liberals so keen on recognising the good qualities even in their political opponents, then you’d expect that they would also be quick to recognise the good qualities, analytical insights and so on in prominent Communist intellectuals. And do they? Do they fuck. I won’t link to the Paul Sweezy obituary, because I think everyone involved agrees that this wasn’t Brad’s finest hour, but it certainly wasn’t atypical. Of course the explanation’s quite sensible. American liberals kiss up to Friedmanites and kick down on Reds because they’re still, twenty years after the fall of the Berlin Wall, scared of being red-baited. One of the enduring reasons why I regard JK Galbraith as a hero is that practically alone among mainstream commentators of the era, he by and large refused to play this game.” (D-squared, Nov. 2007)

29

politicalfootball 04.01.10 at 9:00 pm

The irrational antipathy toward Greenwald in some liberal circles always amazes me. I mean, Henry is no dope, so how is this dopey post defensible?

I don’t agree with Greenwald all the time, but when I disagree, I have, you know, reasons. Does Henry have any answer to this from Greenwald:

In defending Kerr, you don’t even mention, let alone refute, the substantive criticisms I’ve made about him.

30

Marc 04.01.10 at 9:11 pm

Bloix: do you find it useful to make distinctions between people whom you disagree with and people who are badly motivated? I think that the recent decision on corporate campaign donations was disastrous; Greenwald disagrees. Now there are some people supporting this decision who are clearly corporate stooges – but I think that Glenn’s position is motivated by other considerations, in particular his very strong civil liberties views.

I contend that it isn’t fair, when writing about some other subject, to start calling a person like Glenn a corporate stooge or apologist – it simply isn’t an accurate reflection of his motives or beliefs. Similar comments apply when looking at other civil liberties issues. There really are subjects, like torture, with bright lines. But many free speech issues get fuzzy at the edges (fighting words, fire in a crowded theatre, treason.) Distinctions on motive matter.

31

owl 04.01.10 at 9:44 pm

Glenn Greenwald is a great writer and meticulous researcher, and I usually agree with his point of view.

That said, the one time I emailed him — with an earnest comment — the only thing I got back was an annoyed, belittling response.

Thus I learned that it’s best to let Greenwald keep his Medusa-like gaze directed toward politics — where it does some good — and nowhere else.

32

Bloix 04.01.10 at 9:46 pm

Yes, Marc, I do think it’s important to distinguish between arguments made in good faith and arguments not made in good faith. I’ve been involved in many arguments (in person and on blogs) in which I personally have been accused of arguing in bad faith. Sometimes I decide that I’m being attacked ad hominem by a person who can’t refute my argument. But sometimes, after due consideration, I’ve concluded that yes indeed, I was arguing in bad faith (e.g., I was arguing for a position that I didn’t genuinely hold because the person I was arguing with had pissed me off for some reason, or because I had other reasons for holding a position that I was reluctant to put forward).

There are saints in the world who never argue from a bad motive, but I’m not one of them, and Kerr certainly isn’t, either. Here, I think, Kerr is arguing in bad faith, and I think it’s important to call him out, and not to refrain from doing so due to misguided notions of civility.

Having followed the FISA debate and the Al-Haramein case reasonably closely, and having re-read the Greenwald and Kerr posts from the last few years, I’m clear in my own mind that Kerr is sympathetic to the view that the Government is entitled to broad discretion in the area of investigation of potential terrorism, and that this sympathy has led him to disregard the actual principles of law that govern the lawsuits in question. I’m convinced that he incorrectly attacked Judge Anna Diggs Taylor, who decided the ACLU v. NSA case, in that he either misunderstood or ignored the legal standard for entering judgments in civil lawsuits. I’m also convinced that he has misrepresented the holding of the Al Haramein case, either because he misunderstands it or because he wants others to misunderstand it. And I’m convinced that he’s made these errors because he’s permitted his unstated commitment to unfettered government power to take precedence over his understanding of the relevant legal principles.

It’s quite possible, by the way, that he really did misunderstand both cases. I doubt that Kerr is an out-and-out liar of the sort you find on the editorial pages of the Washington Post. But that’s no excuse. A law professor who takes it upon himself to participate in public debate simply cannot permit himself this degree of sloppy thinking. Self-indulgence in this context is a sin.

Kerr has no particular expertise in civil liberties or in terrorism. He’s got a classic law professor resume: a Harvard law degree, a couple of years of low-level DOJ experience, and two judicial clerkships – effectively, no practical experience at all. What he knows how to do is to read, write, and argue. In a public debate like this, he’s got nothing to offer other than his specialized ability to read cases. If he’s unwilling to exercise that skill because his political views are getting in the way, then his contributions are worth no more than any no-name on a comment thread – someone like me, say.

33

Henry 04.01.10 at 9:58 pm

Glenn – if you can point to the place where Orin Kerr, to use your precise words, “viciously disparaged” Judge Taylor, I would _love_ to see it. Reading back through the links from your post, I get language like “It seems to me that there were lots and lots of legal issues like this that had to be answered before Judge Taylor could reach the merits and (potentially) enjoin the program” and a suggestion that the decision should be reversed on appeal. If you consider this to be vicious disparagement, then you’re a much more sensitive soul than I thought (or think!) you are, given your robust approach to public debate. If, on further thought, you don’t have the goods on this, perhaps you’d like to withdraw the accusation in favor of a more accurate one. And this is what bugs me. You describe Kerr as an “apologist,” someone who “viciously disparages” others etc, without ever pointing to good evidence of anything beyond the fact that Kerr clearly has a more expansive understanding of state prerogative, the President’s powers in times of war etc than you do. And this seems to me to be – to be blunt – nonsensical hyperbole. Kerr’s understanding of executive powers is obviously not limitless. If he has ever viciously disparaged _anyone_ on the Internet, it’s news to me. You seem to me to be repeatedly suggesting that he’s some kind of hack or concern-troll. He isn’t. And when you attack someone in personal terms, it _is_ personalized. Which is, for me, the issue.

Russell – if you really think that I’m trying to defend GWU here, I’ll happily leave you to your beliefs.

rea – I’m not a lawyer, but I’m married to one, and have found that most matters of litigation can be explained straightforwardly to lay people if they pay attention. It seems to me (this applies to Aaron too) that this is a matter where there is real legal disagreement over the president’s war powers. If it is ‘transparent bs,’ maybe you can explain exactly why.

Rich – why golly! You surely seem to be suggesting that Orin Kerr defends torture, without, of course any evidence (which would be quite hard to find, since he doesn’t). I’d be tempted to call this kneejerk moronicism, if I wasn’t terrified that you might suggest again that I was a howwid elitist.

34

Henry 04.01.10 at 10:01 pm

Bloix – by partisan, I meant partisan-in-the-sense-of-fighting-aggressively-for-a-political-cause rather than partisan-as-a-card-carrying-member-of-the-Democratic/Republican/Whatever/party.

35

Anderson 04.01.10 at 10:08 pm

Here, I think, Kerr is arguing in bad faith

I have been reading the VC since about 2003, and I don’t think I’ve ever seen Kerr argue in bad faith. He’s mistaken sometimes, but who isn’t? (Present company excluded, of course.)

… Re: apologist, the Shorter OED fails to note any connotation, but I really suspect the dictionaries are missing something here. In contemporary usage, does anyone call himself an “apologist” with a straight face?

36

Anderson 04.01.10 at 10:15 pm

The top Google hits for “i am an apologist” mostly support the negative connotation, FWIW.

37

LFC 04.01.10 at 10:28 pm

I have read the post, but not most of the comments; however, I don’t believe what I’m about to say has already been pointed out: namely, that it is, imo, wrong (that’s the politest word I can think of) for the post to refer to “shared membership of a collective community (the blogosphere),” all the more wrong and surprising since the post’s author studies the blogosphere as part of his academic research. There are millions of blogs and millions of bloggers, as far as I’m aware, not all of whom read each other (that would be impossible), so simply being a “member” of the blogosphere — i.e. having a blog — cannot conceivably make one part of a “collective community” in the sense the post seems to intend. What the post means to refer to is not “the” blogosphere, but rather something like “the elite (political) blogosphere” — i.e., blogs that deal with politics (at least some of the time) and whose authors are relatively well known and which have relatively high numbers of readers and whose authors tend to read each other. But to imply, as the post’s reference to “the” blogosphere does, that this is the entire blogosphere is (a) untrue and (b) arguably insulting to the millions of bloggers who write mostly for themselves and for the occasional person or two or three who might stumble across their blogs via a search engine or by accident.

38

Russell L. Carter 04.01.10 at 10:38 pm

“I don’t think I’ve ever seen Kerr argue in bad faith.”

When a non-lawyer like myself reads all of Law Professor Oren Kerr’s posts about laws that Glenn points to, and observes that the judges are disagreeing consistently about the underlying meaning of what the law should mean (which a Law Professor should understand), then I have to ask, what does it mean to argue consistently in the wrong? Furthermore, the Volokh Conspiracy explicitly promotes a putatively “libertarian” philosophy, whatever that means. Yet if you read the English language words that Kerr writes, it is clear that he is explicitly advocating unlimited government power over individual U.S. citizens whenever The Government sees fit to utter the word “terrorist”. Given the context as I describe above (law professor/libertarian/repeatedly wrong), how can this argument be made, except in bad faith?

This behavior is why a lot of people really don’t like lawyers, of any sort, since it’s obviously considered “normal” by the profession.

39

Glenn Greenwald 04.01.10 at 10:40 pm

You describe Kerr as an “apologist,” someone who “viciously disparages” others etc, without ever pointing to good evidence of anything beyond the fact that Kerr clearly has a more expansive understanding of state prerogative, the President’s powers in times of war etc than you do. And this seems to me to be – to be blunt – nonsensical hyperbole.

Amazing. What you’re invoking here was the standard defense of Bush followers for the last eight years, namely: calling Bush a “lawbreaker” or a “criminal” is outrageous hyperbole because Bush and Cheney have nothing more than — to use your words now — a “more expansive understanding of state prerogative, the President’s powers in times of war etc than you do,” and it’s terrible to convert those kinds of good faith differences of opinion into accusations of radicalism or criminality.

You realize that’s exactly the argument you’re making, right?

He may do so in soft tones and with professorial collegiality, but as I documented in the comment above, Orin Kerr has repeatedly defended many of those radical and criminal policies, including imprisoning people on U.S. soil with no charges of any kind. I don’t consider that a good faith dispute to sit around and, with soft civility, chat about. Those are dangerous, lawless and extremist policies which he justifies. Some differences of opinion – most – are within the realm of the reasonable; those aren’t.

Call me a “binary” thinker if you want, but I do think there are bright lines — torture, indefinite detention, illegal surveillance on American citizens — that one can’t cross and still be within the realm of the reasonable.

As for his attacks on Judge Taylor, Ann Althouse said this in The New York Times:

Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations … much of it incomplete and some of it simply incorrect.”

Kerr was 100% wrong. He was ignorant about the ruling. He failed to understand what he says now — that because the DOJ didn’t raise defenses, the Court should not analyze them. In the midst of ugly right-wing attacks on Judge Taylor for ruling against the Bush administration (with many accusing her of being dumb and an affirmative action hire), Kerr’s providing the “expert” ammunition by deriding her opinion as nothing but some “general ruminations” fueled the flames. That’s what he does – it’s his function: he provides the reasonable, calm, civil expert face to justify extremist and lawless policies.

40

politicalfootball 04.01.10 at 10:41 pm

I think, Henry, you’d be better off dropping the “apologist” thing. The word has clear meanings, both literally and colloquially. The technical meaning you clearly know. The disparaging colloquial meaning, as best as I can reckon, is “someone who defends a position that I disagree with.”

I mean, good heavens, calling Kerr “a sometimes-Bush-apologist” seems like a pretty mild bit of personal bashing – especially in the context here, where Greenwald’s specific intent is to contrast Kerr with a constant Bush apologist.

(I’m quite certain there’s a little joke to be made here about you as a Kerr apologist, but I’m not satisfied that I can come up with one that is both accurate and funny.)

41

Anderson 04.01.10 at 10:51 pm

Yet if you read the English language words that Kerr writes, it is clear that he is explicitly advocating unlimited government power over individual U.S. citizens whenever The Government sees fit to utter the word “terrorist”.

Where, exactly, does Kerr do this? The al-Marri post that’s linked above considers a hypo of blatant al-Qaeda terrorists busted by an illegal search, and contains this clause:

I agree that there are often legitimate issues of proving that alleged terrorists are really terrorists; if the President declares that the five men are Al Qaeda members who want to blow up a dirty bomb, we may want to see some proof.

Obviously, Kerr does *not* argue that the Gov’t can do whatever it wants where “terrorism” is concerned. That’s John Yoo. (And note that I disagreed that Kerr’s hypo properly presented the issue, as the comment thread shows.)

42

politicalfootball 04.01.10 at 10:53 pm

Legal views that would at one time have marked you as an extremist are now introduced into the mainstream by courtly gentlemen like Kerr. Greenwald is a relic of an earlier time, is all, and hasn’t accepted the reality that everything changed with 9/11.

He still calls it “torture,” too, you know, and he uses other rude language. Ultimately, old-timers like Glenn will pass from the scene and our debates will be ever-so-much more civilized.

43

Russell L. Carter 04.01.10 at 10:55 pm

“Where, exactly, does Kerr do this?”

Glenn provided the link to links in #17.

44

Rich Puchalsky 04.01.10 at 11:00 pm

It’s not elitism, Henry. It’s a kind of Babbittry.

Bloix, Henry’s use of “partisan” was best described in a classic Timothy Burke post that I sadly didn’t bookmark. Sorry to describe it at second hand, but it’s a distrust of people who sound sure of themselves merely because they sound sure of themselves. If they were properly civil and made it clear that they didn’t really believe in what they were saying, then they were acceptable. But anyone who uses horrible language like “apologist” — well, they are too extreme.

And mixed up with it is the incredible, laughable self-flattery on display in this post. Henry isn’t a lawyer and has no expert idea about the issues above. But he does know that Greenwald seems uncivil to someone who is a lot like Henry! Therefore, Henry is a free thinker, capable of appreciating wisdom wherever it may be found, and the too-rude people are just fooling themselves.

45

bianca steele 04.01.10 at 11:13 pm

I assumed Henry’s use of “partisan” was similar to the discussion some time back on Jacob Levy’s blog, don’t know whether Tim Burke accepted the terms of that discussion. I know of people (not academics) who feel that way about politics and I don’t get the sense they are Babbitts.

46

Russell L. Carter 04.01.10 at 11:18 pm

@44 And don’t forget poor Kleiman’s takedown by Sadly No!

http://www.sadlyno.com/archives/2710.html

You will not be surprised that there is a bit of Volokh in the mix.

And I really like Mark Kleiman! But he deserved it. And he’s gotten much better.

47

rea 04.02.10 at 12:04 am

rea – I’m not a lawyer, but I’m married to one, and have found that most matters of litigation can be explained straightforwardly to lay people if they pay attention. It seems to me (this applies to Aaron too) that this is a matter where there is real legal disagreement over the president’s war powers. If it is ‘transparent bs,’ maybe you can explain exactly why.

Henry, I’m trying to tell you gently that you need to understand the merits of this controversy better before you opine on the relative merits of the Greenwald and Kerr positions. Perhaps your wife can explain it to you. Greenwald sure tried, but it didn’t take, and having just spent 10 hours writing an appellate brief on insurance issues, I don’t have the energy to work this up at length right now, and I doubt you’ll accept it from me if you won’t accept it from Greenwald.

To put it in the simplest possible terms, when Judge Taylor decided these issues, back when the Bush adminstration was running the Justice Department, Kerr ripped into Judge Taylor. When Judge Walker decided a similar case a few days ago, Kerr ripped into how the Obama Justice Department had argued the case rather than criticize the Judge, even though the Obama Justice Department had argued it in exactly the same was as the Bush Justice Department had argued the cse in front of Judge Taylor.

That’s hackery.

Not only that, but it was apparent to any lawyer who had read Judge Taylor’s opinion (me, for example) that either Kerr had not read it, and had relied instead on inaccurate media accounts of Judge Taylor’s rulings, or he had decided to simply make shit up for partisan advantage. Although it may require a certain amount of technical proficiency to look at Judge Taylor’s opinion and see this, what essentially happened is that the government refused to brief an issue that Judge Taylor ordered them to brief, and accordingly lost that issue, whereupon Kerr criticzed her on the merits of the unbriefed issue.

48

kent 04.02.10 at 12:16 am

I’m still waiting for Glenn to post a non-belittling response to anybody who criticizes him. Or even a portion of a response, on any point, that contains a sentiment along the lines of “I may have overreacted about x” or “You have a point about y” or “Sensible people can disagree about z.”

Haven’t seen it once, ever.

49

rea 04.02.10 at 12:23 am

Oh, and by the way, since the terms of this argument apparently make it relevant, I’ve met Judge Taylor, and she’s a very nice person.

50

kid bitzer 04.02.10 at 12:33 am

@48–

maybe, but i gotta say his responses to henry here have been much milder and less hostile than his responses to a different kerfuffle over on balloon juice the other night.

and, as a result, they have been *much* more effective. less aggro, better results.

51

LFC 04.02.10 at 12:36 am

R. Puchalsky @44: if there is self-flattery or self-congratulation in this post, it has less to do with what you suggest and more to do with the post’s implication that “the blogosphere” consists of hundreds of blogs rather than millions.

52

ScentOfViolets 04.02.10 at 12:52 am

rea – I’m not a lawyer, but I’m married to one, and have found that most matters of litigation can be explained straightforwardly to lay people if they pay attention. It seems to me (this applies to Aaron too) that this is a matter where there is real legal disagreement over the president’s war powers. If it is ‘transparent bs,’ maybe you can explain exactly why.

Normally, I’m just as much against credentialism as the next guy and as a teacher, I kinda have to believe that most things can be explained straightforwardly at first cut. But . . . I might be wrong on the attributions, but is this the same Henry who wrote a paper purporting to find that people on “the left” were more monolithic in their beliefs? If that’s the case, istr that he resorted to credentialism to explain his rather idiosyncratic results and didn’t seem to listen very well to complaints about his methodology.

Now, I’m not saying that it’s the same Henry, but if it is, I don’t think he can claim special and unexplainable expertise to defend his own work but then turn around and claim that what lawyers do is no big deal and anyone can follow the procedures and explanations.

Just my two cents.

53

clod Levi-Strauss 04.02.10 at 2:25 am

Talk about “binary.” Henry Farrell can’t reconcile the existence of the benign and the corrupt in the same body. At best Kerr is a tragic figure: sincerely defending the end of the rule of law as justified in law. I can sympathize with the person and be disgusted by his acts. Henry in defending the first, feels obliged to defend the second.
Personal loyalty trumps intellectual obligation. Late-modernism as moral mannerism.
It’s like the baroque hypocrisy of the Catholic church.

54

Dr. Lucy van Pelt 04.02.10 at 2:28 am

glenn = paranoid

55

blah 04.02.10 at 2:28 am

But I suspect that the reason that Kerr so gets on his nerves is precisely because he argues for a greater deference towards the state than Greenwald would like, but is not, obviously, a Thiessenesque hack.

Funny how you accuse someone of arguing in bad faith without offering the slightest evidence, but get so bothered by Greenwald’s accusations of bad faith (which are backed up by evidence).

I suspect the reason that Greenwald gets on your nerves so much is that he refuses to conform to your quaint notions of academic collegiality. In other words, bloggers are riff raff, but professors are gentlemen.

56

Steve LaBonne 04.02.10 at 2:56 am

After reading the links, and seeing it documented that Kerr ignorantly and for transparently hackish reasons derided an opinion by a respected jurist which 1) he clearly hadn’t really read and 2) is in an area of the law in which he could claim no expertise, I’m at a loss to understand the defenses of him. Greenwald was actually pretty mild on this, by his standards.

57

David 04.02.10 at 3:15 am

Perhaps this is Henry’s idea of a subtle April fools joke. Otherwise he has shot himself in both feet whilst they were firmly in his mouth. Is that vituperative enough? Wasn’t it an earlier Henry who wished to be rid of some meddlesome columnist? I think that you should flunk yourself and take the class again.

58

Guy Gardner 04.02.10 at 3:25 am

@ Kent

“I’m still waiting for Glenn to post a non-belittling response to anybody who criticizes him. Or even a portion of a response, on any point, that contains a sentiment along the lines of ‘I may have overreacted about x’ or ‘You have a point about y’ or ‘Sensible people can disagree about z.'”

I’ve never seen Glenn do the first two, but the latter–“Sensible people can disagree about it”–is something he does REPEATEDLY. Most of his posts about health care or Citizens United use this exact phrase, or he at least does so in addressing commenters who accuse him of being too “binary.”

Another commenter mentioned that Glenn was short in an e-mail response. This may be, but in his defense, I e-mailed the guy a few years back with a technical question about Hamdi v. Rumsfeld for some research I was doing at the time. He responded in exactly ten minutes with a lengthy, extremely helpful response.

I assume that he doesn’t sleep, which may explain some of the rather rude or abrupt retorts he gives others. Or maybe he is just a dick sometimes, but I’ve never found anything that he’s written in his blog to be needlessly reactionary or spontaneous.

59

ejh 04.02.10 at 4:15 am

But where’s the vicious disparagement? I’ve read all through the comments box hoping for some vicious disparagement, but I’ve not found any. Tsk.

60

politicalfootball 04.02.10 at 4:43 am

I’m still waiting for Glenn to post a non-belittling response to anybody who criticizes him.

Beyond Greenwald’s use of coarse words like torture, I think this captures the other reason that Establishment Liberals don’t like him: He refuses to back down when people haven’t engaged his argument.

Henry uses a lot of language here to come up with, as best as I can reckon, one plausible charge: That Greenwald falsely accuses Kerr of having “viciously disparaged” Judge Taylor.

The most that can be said of that charge is that it’s plausible. But Greenwald has a plausible response.

Even if you don’t buy Greenwald’s defense and find Henry’s accusation persuasive, the accusation itself is trivial. And the rest of Henry’s post, and his comments, are just hooey.

kent, I have to tell you, I think Greenwald has responded extremely respectfully. I’ve tried to respond respectfully myself. But Henry makes that difficult by engaging in a lengthy argument with almost no merit whatsoever.

Anyway, here’s your chance: What aspect of Henry’s argument do you think was inappropriate to belittle. I’m not asking “What part of Henry’s argument is correct?” I’m asking, “What part of Henry’s argument isn’t absurd?” I’ve identified the one element of non-absurdity that I could find – even though I think it’s incorrect. Do you think there’s something else? Can you identify it?

61

anon/portly 04.02.10 at 8:03 am

rea in currently 47: When Judge Walker decided a similar case a few days ago, Kerr ripped into how the Obama Justice Department had argued the case

On the other hand, in his comment on Judge Walker’s decision of yesterday, Kerr has nothing bad to say about the Obama Justice Department’s handling of this other case.

62

dsquared 04.02.10 at 9:38 am

Over on “Aaronovitch Watch”, we use the acronym “bacai”, part of the longer phrase NNTBACAI. I’ll give the clues that the “B” stands for “be” and the last two letters for “about it”. I think it’s a useful technical term, particularly since the fact that it contains a popular fad diet food means that it can’t be overused because our spam filter rejects it.

63

Rich Puchalsky 04.02.10 at 12:14 pm

“Or even a portion of a response, on any point, that contains a sentiment along the lines of “I may have overreacted about x” or “You have a point about y” or “Sensible people can disagree about z.””

Thanks to kent for supplying another example. You see, what is important is not that Greenwald is actually right. In kent’s complaint, the rightness or otherwise of what Greenwald wrote isn’t even mentioned. What’s important is that his response is “belittling” because he refuses to make one of the conventional noises that indicate that he doesn’t really believe what he’s saying. Note also that attacks on Greenwald over trivia, like whether he used the word apologist to describe someone who defended policies of the Bush administration, are not themselves deemed to be belittling.

Also note that kent really wants Greenwald to make some conventional noises that go directly against his argument, and indeed, against what I’d describe as civilized morality. I’ll substitute in some values for x, y, z. Then the statements become “I may have overreacted about torture”, “You have a point about indefinite detention”, “Sensible people can disagree about illegal surveillance”.

This kind of mini-me Broderism is a large part of Crooked Timber. Well, not a large part of the writing of the people who I really read it for: Quiggin, Holbo, Berube, and maybe some of the rarer posters. But some of the other posters really should use their vaunted ability to understand people across an intellectual divide to consider that running a place that has banned e.g. John Emerson actually indicates their inability to hear anyone who doesn’t conform to one of the worst attributes of contemporary discourse.

64

JoB 04.02.10 at 12:45 pm

60- is the first N a Not and the second N a Nice? Or the other way around. If the former: bacai to 61!

65

mds 04.02.10 at 12:57 pm

I’ve read all through the comments box hoping for some vicious disparagement, but I’ve not found any.

Perhaps, ejh, you’re incapable of reading thoroughly enough … you incontinent monophysite hooligan.

66

kid bitzer 04.02.10 at 1:17 pm

@62– i was guessing “no need”, but i suppose there’s no need to be a curmudgeon about it. (that is, surely, what the ‘c’ stands for?)

@61– have they banned old john emerson, then? a pity if so–he’s a good thing.

@63–oooh! oooh! obscure disparagements! that’s just what i’d expect of you, mds, you incommensurate diophantine lavabo!

67

Marc 04.02.10 at 1:22 pm

I’m getting more than a little tired of these responses treating Greenwald as some sort of saint. First of all, tactics matter when your intent is to persuade. Glenn employs scorched earth tactics and he does it a lot.

Recently people posted some questions about a PAC that he was paid by (and, for reference, this came after he harshly attacked an academic, Gruber, for alleged conflicts of interest.) Now as it happens the PAC in question turned out (at least in my view) to be not a big deal. But his response (over at Balloon Juice and on DKos) was one of the most embarrassing and nasty over-reactions that I’ve seen on the net, and I’ve seen a lot of them. And, no, I *will not* accept some sort of defense that amounts to license to be an incredible jerk when faced with an obnoxious allegation. That’s the perfect situation to be magnanimous and convert your skeptics into allies with reason – because you know that the facts are on your side.

Glenn has been spending a lot of time recently characterizing anyone who disagrees with him on Obama policies as being a cult follower of Dear Leader. You can, as they say, look it up. He’s also been a fierce, prolific, and unapologetic defender of civil rights at a time when we really need that sort of voice. Too much of the former and the latter function is no longer served – because when someone calls you names it makes you substantially less likely to heed what they say.

68

mds 04.02.10 at 1:28 pm

I’m getting more than a little tired of these responses treating Greenwald as some sort of saint.

Especially the ones posted by chocolate unicorns, or have comment numbers that are irrational.

69

John Protevi 04.02.10 at 1:49 pm

I’m getting more than a little tired of concerned about these responses treating Greenwald as some sort of saint. First of all I’m very concerned that tactics matter when your intent is to persuade. I’m very, very concerned that Glenn employs scorched earth tactics and he does it a lot.

And we thank you for your concern for all those hurt feelings out there. If only Greenwald would be more civil, and (to say the name of the love that dare not speak its name) bipartisan!

Or if you’d like the well-thought-out version, see Rich Puchalsky at 12:14 pm.

70

JoB 04.02.10 at 1:50 pm

A-ha! This is about Obama; thén I understand why everybody gets all curmudgeon about it.

71

ScentOfViolets 04.02.10 at 1:54 pm

And, no, I will not accept some sort of defense that amounts to license to be an incredible jerk when faced with an obnoxious allegation. That’s the perfect situation to be magnanimous and convert your skeptics into allies with reason – because you know that the facts are on your side.

Well, I will not accept your not accepting that.

72

Barry 04.02.10 at 2:24 pm

“That’s the perfect situation to be magnanimous and convert your skeptics into allies with reason – because you know that the facts are on your side.”

This statement makes several major assumptions, such as that facts matter to the ‘skeptics’, and that magnanimity will convert ‘skeptics’.

73

Elijah 04.02.10 at 2:32 pm

“This kind of mini-me Broderism is a large part of Crooked Timber. ” (Rich).

I disagree. Its just one person: Henry. Unfortunately, he is the Fred Hiatt of Crooked Timber and therefore controls most of the editorial page.

But yes, I do wish D-squared and Kieran would post more often.

74

El Cid 04.02.10 at 2:38 pm

I still don’t understand this nonsense by people who hate Greenwald expecting other people, who see things like, say, blog posts about a PAC which pretty clearly suggest he and others are engaging in some serious wrongdoing having to do with raising & spending political funds, and then the problem is that OMG Greenwald sounded really pissy and mean and over-generalizing in response.

Who finds this convincing? It’s ludicrous.

I’ve seen other blogs where people despise Greenwald citing this particular blog post about how it’s revealing again what a mis-behaving naughty nasty man Greenwald is and apparently that he made a bad argument, which doesn’t even seem to be supported by this original post itself.

I do admire Greenwald, and as a blog reader I don’t have a need to see him as a ‘saint’, nor am I horrifiedly shocked when various bloggers start doing the ‘F*** you,’ ‘NO F*** YOU!’ routine, but I don’t even see how I’m supposed to get mad at Greenwald when he’s rude/pissy to people suggesting douchebag things about a PAC he (in part) runs or when dealing with public officials whose public actions and writings he despises.

And not just because it was Greenwald, but because I was genuinely curious about this other public figure, Kerr, to see what principles he supposedly was a great exemplar of and why there would be this mean tendency by anyone opposing him to treat his reputation improperly, and so far it seems like he’s taken some pretty objectionable positions.

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mds 04.02.10 at 2:46 pm

This statement makes several major assumptions, such as that facts matter to the ‘skeptics’, and that magnanimity will convert ‘skeptics’.

Well, to be fair, I think DougJ at Balloon Juice might feel a bit contrite right now, and the BJ commentariat might have been quicker to share that contrition if GG hadn’t gotten their backs up with his somewhat over-the-top response. But that was an ordinary Internet slapfight, as distinguished from calling a Kerr a Kerr. So sometimes tone really does matter, and GG is both notoriously tone-deaf and swift to take umbrage (i.e., I think he’s a saint). In this case and many others, however, he’s acting the gadfly to all the serious chin-stroking thinkers who, when confronted with legal arguments against government actions in the War on an Idea, cannot help but say, “Yes, but … .” Or who, as GG has demonstrated, change their tune about what White House courtroom techniques are appropriate when the party controlling the White House changes, if only coincidentally.

76

Henry 04.02.10 at 2:52 pm

oh dear. I have to go prepare for class. But in short order.

Glenn Greenwald:

Amazing. What you’re invoking here was the standard defense of Bush followers for the last eight years, namely: calling Bush a “lawbreaker” or a “criminal” is outrageous hyperbole because Bush and Cheney have nothing more than—to use your words now—a “more expansive understanding of state prerogative, the President’s powers in times of war etc than you do,” and it’s terrible to convert those kinds of good faith differences of opinion into accusations of radicalism or criminality.

You realize that’s exactly the argument you’re making, right?

Not only amazing! But Shocking! Horrifying! Grotesque! Unbelievable! Bizarre! Unprecedented! (non-Irish people may have to ask Kieran for context on the last four). Or not so much. I’m rather transparently not defending George W. Bush here. I’m defending Orin Kerr – who is manifestly not George W. Bush, nor for that matter Bill Kristol(with whom you have specifically grouped Kerr in past comments). Unless everyone to your right on these issues is necessarily an evil-intentioned hack, then people can actually hold different views than yours on the President’s war making powers and still be worth taking seriously. If you genuinely think that Orin Kerr can be grouped together with obviously actively dishonest people like Kristol, I think you have your work cut out to prove it. Nor do I think that you can describe the use of a phrase such as “general ruminations” as “vicious disparagement” and keep a straight face. Perhaps I’m wrong – and lawyers and judges really are a more genteel and easily shockable crowd of people than they would seem, from my past experience, to be.

LFC – I thought that your first comment before #51 above was a deliberate (and at least mildly funny fwiw) parody. Evidently I was wrong.

politicalfootball – Rather evidently, Greenwald’s intention (e.g. comparing him to Kristol etc) is not to suggest that he’s a sometime apologist, but an academic class of concern-troll. I honestly don’t think you can read through his posts and not come away with that understanding. And the ‘some dare call it torture’ thing is a complete red herring. I dare call it torture too. So, for that matter, does Orin Kerr.

ScentofViolets – I really wouldn’t get into litigating that whole nonsense again. You were wrong the first time, and you’ve misremembered it badly to boot. Your actual objection on the time was to being described as leftwing for holding what you considered to be reasoned views (my argument being that this class of views was _both_ leftwing and reasoned views, the left being, as on many such issues, entirely right on the merits), and to the notion that someone who opposed the Iraq war and was pro-abortion was more leftwing than someone who opposed the Iraq war and opposed abortion (this being the very simple idea underlying ideological scaling). I’m sorry but not surprised to see how this has morphed in your head in the interim into a general attack on the groupthink left (the original point of the original post having been precisely that lefties ought to be proud of the fact that they are leftwing).

elijah – if you think I kiss up to rightwingers, and kick down on reds, you should really read this blog a little more. In general, I’m a lot fonder of reds than right-wingers, and frequently make that clear.

rea – I’m sorry, but the ‘if I had time to explain it to you, it would all be crystal clear’ thing may be reasonable – people have dayjobs and can’t be correcting all the wrongness on the internets – but only convinces under very unusual circumstances.

David – that is a quite marvelously mangled metaphor. It isn’t in the Thomas Friedman
class, but it’s very good for a first try. Consider yourself encouraged to keep it up.

Rich – this is a remarkably stupid pair of comments. On partisanship – it may be worth doing a search of Crooked Timber (or read my pieces for the American Prospect) for my general thoughts on the topic. In general I am for it. This does not mean that I am obliged to agree with partisans on ‘my’ side when they are saying things that are stupid or wrong. In re: John Emerson – you are completely and demonstrably wrong to claim that he was banned. I still keep on hoping that he’s going to come back to my threads (while I sometimes found him annoying, when he got onto one of his usual hobbyhorses, he could also be lively and interesting). As a piece of advice for future argument – when you make suggestions or claims in the future (e.g. that It’s All About Orin Kerr’s Torture Apologetics, or The CT Is Teh Awful Because They Banned Zizka), it may be a good idea to check whether they are _right_ before hitting that submit button. ‘Arguments’ usually come across better when they are supported by ‘facts.’

Now, because I have to go work, and am in any event getting dangerously close to breaking dsquared’s DBACAI rule, I’m saying goodbye for the moment. Try to play nice together while I’m gone.

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Henry 04.02.10 at 2:55 pm

PS – the above turned out to be ‘not so short order’ as is obvious from even a brief inspection. And I can’t restrain myself from telling the world that I want to _hug_ elijah. Can I please put “the Fred Hiatt of Crooked Timber [who] therefore controls most of the editorial page” on my c.v?

78

bianca steele 04.02.10 at 3:12 pm

Where are the right-wing or conservative apologists for Democratic administrations? Is there nobody on the right who is accused of essentially supporting liberal policies? If they’re “disciplined” (as John H. said the other day), is it in what they say or in who they attack, or what?

79

politicalfootball 04.02.10 at 3:15 pm

Unless everyone to your right on these issues is necessarily an evil-intentioned hack, then people can actually hold different views than yours on the President’s war making powers and still be worth taking seriously.

I think this is an error. Greenwald is not taking issue with people to his right, but rather with Kerr, who has a distinct view on this subject matter that Greenwald doesn’t like. I guess ultimately I’m not going to be able to grasp your point here because I think the reasons for Greenwald’s invective are clear, and for whatever reason, your defense of Kerr’s views on this specific matter is not merely unclear to me, but actually invisible. I can’t see that you’ve attempted it.

As to your specific response to me:

politicalfootball – Rather evidently, Greenwald’s intention (e.g. comparing him to Kristol etc) is not to suggest that he’s a sometime apologist, but an academic class of concern-troll.

I think that’s fair; Greenwald is certainly unkind to Kerr’s views and, by extension, Kerr himself. I guess my question is: So what? I don’t see where you’ve really made an attempt to rebut this view.

At most, you’ve attempted to place Kerr’s views within the broad range of reasonable debate, and I think you’re right that Greenwald doesn’t want Kerr there (on this issue). I’ve heard Greenwald’s view on this, but what’s your view on Kerr’s actual argument? Why are these specific views of Kerr’s reasonable? How, specifically, does Kerr enrich the debate in this instance?

80

ScentOfViolets 04.02.10 at 3:22 pm

ScentofViolets – I really wouldn’t get into litigating that whole nonsense again. You were wrong the first time, and you’ve misremembered it badly to boot. Your actual objection on the time was to being described as leftwing for holding what you considered to be reasoned views (my argument being that this class of views was both leftwing and reasoned views, the left being, as on many such issues, entirely right on the merits), and to the notion that someone who opposed the Iraq war and was pro-abortion was more leftwing than someone who opposed the Iraq war and opposed abortion (this being the very simple idea underlying ideological scaling). I’m sorry but not surprised to see how this has morphed in your head in the interim into a general attack on the groupthink left (the original point of the original post having been precisely that lefties ought to be proud of the fact that they are leftwing).

Sigh. There are several points to consider here: (a) You haven’t addressed my observation, namely that in a previous posting you were more than happy to make an argument from authority, saying trust me, I’m an official expert and that’s just the way these things are, yet here you turn around and claim that since this is just lawyer-talk, anyone can get a handle on it. This seems rather contradictory to my way of thinking, unless perhaps you have a rather demeaning view of the fine art of lawyering. (b) This wasn’t just me you tried to pull rank on in the previous thread, but a host of other people as well; significantly, you seem to have a rather largish crowd who do not find for you in this instance as well. (c) (and not really on-topic) you seem to have a propensity for predetermining what people are trying to say despite the fact that these very same people are telling you – multiple times, I might add – that this is not, in fact, what they are saying. As a specific example, no, what you are attributing to me is not what I was saying, and I told you so several times. In fact, my objection had to do with the direction statistical inference. I repeat, that’s neither here nor there, and certainly not germane to my point. The fact that you assign variable importance to expertise in the face of objections from multiple people is.

81

Cranky Observer 04.02.10 at 3:36 pm

> I’m rather transparently not defending George W. Bush here. I’m defending
> Orin Kerr – who is manifestly not George W. Bush, nor for that matter Bill
> Kristol(with whom you have specifically grouped Kerr in past comments). Unless
> everyone to your right on these issues is necessarily an evil-intentioned hack, then
> people can actually hold different views than yours on the President’s war making
> powers and still be worth taking seriously.

If we were discussing George HW Bush, that might be a reasonable response. If we were discussing Ronald Reagan it would be a stretch, but not totally unreasonable. Heck, I can even make an argument for John Ashcroft being a less evil person than he appeared at the time.

But we aren’t. We are talking about George W Bush, Dick Cheney, David Addington, Scooter Libby, John Yoo, Alberto Gonzales, and Karl Rove and their minions and enablers. Essentially everything that group said from 2000-2009 was a lie, and their every action involved deliberate destruction of the Constitution and basic civil rights with malice aforethought. How exactly can “reasonable people disagree” on that?

Do you really believe that there is a “reasonable” argument (cf Kerr) that the President is not simply an ordinary citizen of the United States who has been /loaned/ the executive office in trust, but is actually the King of Sparta? Heck, even the Spartans had some checks and balances in their government; Bush/Cheney/Yoo’ argument was that the President is actually the Dictator of Sparta and Torturer-in-Chief. There is really a “reasonable” argument for that? There can actually be reality-based people who can and are willing to have a good-faith debate with, say, Marcy Wheeler on that issue? Can you point to them please?

While I’m waiting, I’ll re-read this story:

=====
http://www.stltoday.com/stltoday/news/stories.nsf/laworder/story/CD70B7C06DA1D865862576F90011CED1?OpenDocument
By Robert Patrick
ST. LOUIS POST-DISPATCH
04/02/2010

ST. LOUIS — It was a stolen goods case that federal officials announced in 2008 with fanfare and hints that operators of five convenience stores had used proceeds to support Palestinian terrorism abroad.

It ended Thursday with the sentencing of the last of nine defendants to probation. House arrest, work release or probation turned out to be the penalty for everyone prosecuted as a member of what officials called the “Hamed organization.”

Four other cases were dropped, and one defendant was never found. Among the others, the government eventually agreed to plea deals that helped keep the aliens among them from being deported.

Defense lawyers said that Thursday marked the final fizzle of an overblown investigation. They said it was prompted by the targets’ Arabic-sounding names and Middle Eastern origins, and may have been as much about trying to keep a Republican in the White House as protecting America.

The attorneys said their clients were simply sending money to relatives, in some cases for the medical care of those who were desperately ill.

If the defendants were all named O’Brien, “I don’t think we’d be here today,” lawyer Neil Bruntrager complained in one of the early hearings, where he represented lead defendant Bassam “Sam” Hamed.
=====

Too bad those guys weren’t tortured; then we might have REALLY gotten the “reasonable truth”.

Cranky

82

Bloix 04.02.10 at 3:37 pm

No, this is not about Obama. It’s about the failure of the Obama adminsistration to roll back the abuses of the Bush administration, yes – but the core issue is the existence of the abuses, not the personalities of the players. And it’s not merely about civil liberties in the sense of individual rights. It’s about the rule of law as the bulwark against authoritarian government.

Since the Nixon administration, the Republican party has been committed to extensions of government surveillance and control of dissent. When Democrats are elected – Carter, Clinton, and now Obama – the creep is halted but not rolled back.

During the George W. Bush administration, and under cover of 9/11, these efforts redoubled and changed in quality, to become a full-bore effort to turn the United States into a one-party state, with a melding of big business, religion, party, and government, along the lines of Mexico under the PRI. The tools were the appointment of partisan hacks to the federal courts; the replacement of career prosecutors with party operatives; the use of the criminal law to influence elections; the surrender of government agencies to the control of industry; the use of government contracts and grants to reward contributors and to punish the opposition; control of the media, through overt propaganda operations like Fox News and the subversion by leaks, favors and threats of the rest of the press; the unprovoked invasion of a foreign country and the whipping-up of war hysteria; the enactment of gross infringements of civil liberties, like the Patriot Act, which stifled dissent and authorized surveillance of ordinary Americans; and experiments in the abrogation of the rule of law, such as Guantanamo and the military imprisonment of Jose Padilla, which was designed to establish the power of the president to seize and imprison any American at his personal direction.

Bush, Cheney and Rove fell short because they so dreadfully mismanaged the occupation of Iraq; because they lost a majority in the Senate in 2008 (due only to George Allen’s incautious use of an ethnic slur on camera), which allowed the Democrats to conduct hearings into the U.S attorney scandal and thereby to prevent the use of the criminal law to steal the 2010 election; because of the unforeseen financial crisis; and because a few judges, prosecutors and government attorneys had sufficient commitment to the rule of law that they would not fully cooperate. In other words, we got lucky.

But, under Obama, none of the erosions of civil liberties have been restored. Obama’s Justice Department still claims the right to spy secretly, to imprison indefinitely, to torture and kill at the President’s will, and to prevent the courts from supervising government surveillance and use of coercive force. And the administration refuses to punish the torturers and spies and their enablers, thus assuring that they will be in a position to try again the next time a Republican is elected. It doesn’t matter whether Obama personally intends to subvert democracy. These illegimate powers remain in place, awaiting the next Republican president who can push again, harder and smarter, to puncture the paper-thin defenses against totalitarianism that just barely managed to prevent a Bush-Cheney-Rove slow-motion putsch.

Greenwald is one of the very few commentators who understands this. Everyone else seems to think that with Cheney and Rove gone, we can go back to arguing about particular policies and programs – but Greenwald understands that the democratic process itself is still under threat, and he’s the one of the very few who’s willing to talk about it.

83

ejh 04.02.10 at 3:47 pm

Do you really believe that there is a “reasonable” argument (cf Kerr) that the President is not simply an ordinary citizen of the United States who has been /loaned/ the executive office in trust, but is actually the King of Sparta? Heck, even the Spartans had some checks and balances in their government;

Wasn’t one of those checks and balances that they had two kings?

84

Anderson 04.02.10 at 4:08 pm

Compare Scott Horton:

I note that Orin Kerr, whose expertise in these issues is considerable, takes issue with some of the press coverage this morning, offering this qualification:


The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

He’s right that the Justice Department, maneuvering deftly to limit damage in an obviously hostile judicial environment, used the state secrets privilege and other tactics to avoid any definitive ruling on the Bush-era program. It seems to me that the Justice Department’s effective default on the non-classified case had the same import: it did not want to expose an obviously frail (indeed criminal) program to judicial scrutiny. This was a prudent step for counsel in a difficult bind legally. But am I the only person disturbed by the public spectacle of the Justice Department behaving as if it were criminal defense counsel in a case in which it knows its client plainly is guilty of serious wrongdoing? The way the Times and other reports have characterized the case is accurate.

See, if only Horton read CT and Greenwald more closely, he would know what a hack Kerr is, and not waste his time. Surely Scott Horton knows much less than the commenters here.

85

Anderson 04.02.10 at 4:18 pm

One more tidbit:

I have long agreed the program [at issue in al-Haramain] was illegal

Orin Kerr

86

Elijah 04.02.10 at 4:35 pm

“Can I please put “the Fred Hiatt of Crooked Timber [who] therefore controls most of the editorial page” on my c.v?

Now, now, don’t be coy. You know very well that your grown-up-I’m-above-it-all play isn’t for your c.v. You just want to feel good about yourself. All that we dirty hippies are asking is that you don’t pretend that your self-pleasuring is the Only-Thing-Between-Us-and-the-Death-of-Pluralism.

87

Sebastian 04.02.10 at 4:35 pm

Greenwald: “You like Kerr and think he’s “moderate” and reasonable. That’s nice. But that’s not how I write. “

Right. You don’t think that anyone who disagrees with you on any issue could possibly be reasonable. The kind of humility marked by “I truly believe this, but I could be wrong” just isn’t something that crosses your mind. We get that. Which is why you reduce everything to views that agree with yours (good views) and views that don’t (unspeakably evil, disgusting and horrible views).

Now as it turns out, I’m pretty close to a free speech absolutist (including for people operating through corporations–shock), and I have very strict views on presumption of innocence and proper police procedure, so I tend to agree with you on the merits of many things. But not *all* disagreements about *all* of those things immediately condemn someone to the outer circles of hell.

Which is how you write.

You are a very intelligent writer, with no apparent sense of empathy for people who might disagree with you on the proper weighting of any particular value.

You cite cases where you have complimented Orin *when he agreed with YOU* as if that spoke to what we are talking about. It does not. The way you write is to assert that disagreeing with YOU is evil.

That is how you write.

And ironically, it is rather reminiscent of a style of disagreement you may have heard of: McCarthyism.

88

Rich Puchalsky 04.02.10 at 4:40 pm

“On partisanship – it may be worth doing a search of Crooked Timber (or read my pieces for the American Prospect) for my general thoughts on the topic. In general I am for it. This does not mean that I am obliged to agree with partisans on ‘my’ side when they are saying things that are stupid or wrong. “

In other words, you are for partisanship in the abstract, and only object to actual instances of it. Greenwald did not, of course, write something that was “stupid or wrong”, he wrote something that was both factually correct and an important part of what he wanted to say, as his further comments here make clear, and as you have never managed to dispute.

Being for partisanship in the abstract is no great distinction, post-Bush. Even Tim Burke, if I remember rightly, issued some kind of mea culpa eventually. It is now completely untenable for anyone with pretensions towards intellectuality to do the old “One side wants to legalize torture — on the other hand, the other side makes mean comments about those who want to legalize torture, so both are a threat to pluralist society” thing as a serious argument. But your habits of mind remain, as this post demonstrates. And that’s really all it is.

I do regret bringing up John Emerson, not because your (condescending) description of what happened is correct, but because he’s well out of it. Sorry for that.

89

mds 04.02.10 at 4:44 pm

And ironically, it is rather reminiscent of a style of disagreement you may have heard of: McCarthyism.

Yes, a private individual on the internet attacks the argument that the government can sweep away constitutional rights merely by assigning the appropriate label to people, and it’s that individual who’s indulging in McCarthyism. Well played, sir.

90

RK0 04.02.10 at 4:51 pm

Both Kerr and Greenwald agree that Judge Walker didn’t discuss the merits (because the government refused to brief them); they just disagree whether granting the plaintiffs relief should be characterized as “ruling the program unlawful.” As several commenters have pointed out, Greenwald is right about this: whether or not the opinion discusses the merits, the court had to implicitly find the program unlawful to grant the plaintiffs summary judgment.

On the other hand, Greenwald is wrong that Kerr is inconsistent in criticizing Judge Taylor’s opinion and not Judge Walker’s. Judge Walker hardly even touched on the merits, while Judge Taylor embarked on a strange excursus on the First Amendment and separation of powers (p. 28-42). That reasoning, and not, as far as I can tell, the result, was what Kerr (along with Jack Balkin and many others) were criticizing back then. In fact, it would be very odd if Kerr were criticizing the result, since he agrees that the program is illegal under FISA.

91

RK0 04.02.10 at 4:53 pm

(Posting without links to get this out of moderation.)

Both Kerr and Greenwald agree that Judge Walker didn’t discuss the merits (because the government refused to brief them); they just disagree whether granting the plaintiffs relief should be characterized as “ruling the program unlawful.” As several commenters have pointed out, Greenwald is right about this: whether or not the opinion discusses the merits, the court had to implicitly find the program unlawful to grant the plaintiffs summary judgment.

On the other hand, Greenwald is wrong that Kerr is inconsistent in criticizing Judge Taylor’s opinion and not Judge Walker’s. Judge Walker hardly even touched on the merits, while Judge Taylor embarked on a strange excursus on the First Amendment and separation of powers. See slip. op. at 28-42. That reasoning, and not, as far as I can tell, the result, was what Kerr (along with Jack Balkin and many others) were criticizing back then. In fact, it would be very odd if Kerr were criticizing the result, since he agrees that the program is illegal under FISA.

92

Cranky Observer 04.02.10 at 4:54 pm

>> Heck, even the Spartans had some checks and balances in their government;

> Wasn’t one of those checks and balances that they had two kings?

I suspect Cheney thought he and George W. were the two kings; he found out too late that the Bush Family disagreed.

Cranky

93

Rich Puchalsky 04.02.10 at 4:54 pm

“And ironically, it is rather reminiscent of a style of disagreement you may have heard of: McCarthyism.”

Thanks to Sebastian for providing another example. Note here that “McCarthyism” is reduced to a style of disagreement, as if McCarthy and Greenwald have equal amounts of institutional power. It is also contentless — call everyone to your left a Communist, call someone who defended some Bush policies a sometime apologist, it’s all the same thing.

Note also that the objection is phrased as a demand for “humility”. Greenwald must surround his claims with “I truly believe this, but I could be wrong” as a sort of marker that tells us that he is a humble person. It is all about Greenwald’s personal virtue, after all — that is what is important here.

Note also that a moral claim has become a matter of style. Greenwald forthrightly says that he refuses to write as if this is a matter on which sensible people can disagree. And Sebastian makes that all about Greenwald’s writing style and, by extension, his personality. It’s no longer about moral condemnation at all, or, at least, moral condemnation itself is assumed to be just a subset of McCarthyism, no matter what it is about.

94

mds 04.02.10 at 4:57 pm

See, if only Horton read CT and Greenwald more closely, he would know what a hack Kerr is, and not waste his time.

So, Anderson, could you explain how, according to Kerr, Judge Walker “had no choice” in his ruling, but Judge Diggs Taylor was worthy of ridicule when one party was the Bush DOJ? Or perhaps you need to call up Scott Horton and see if he can explain it to you? Because I know it can be difficult to keep up, but that flip-flop is what set off this latest round from Greenwald.

95

RK0 04.02.10 at 5:00 pm

So, Anderson, could you explain how, according to Kerr, Judge Walker “had no choice” in his ruling, but Judge Diggs Taylor was worthy of ridicule when one party was the Bush DOJ?

Because Judge Walker declined to address the merits, while Judge Taylor chose to do so, and did so in a very confused way.

96

Raghav 04.02.10 at 5:05 pm

Ugh, trying one more time to post this comment.

Both Kerr and Greenwald agree that Judge Walker didn’t discuss the merits (because the government refused to brief them); they just disagree whether granting the plaintiffs relief should be characterized as “ruling the program unlawful.” As several commenters have pointed out, Greenwald is right about this: whether or not the opinion discusses the merits, the court had to implicitly find the program unlawful to grant the plaintiffs summary judgment.

On the other hand, Greenwald is wrong that Kerr is inconsistent in criticizing Judge Taylor’s opinion and not Judge Walker’s. Judge Walker hardly even touched on the merits, while Judge Taylor embarked on a strange excursus on the First Amendment and separation of powers. See slip. op. at 28-42. That reasoning, and not, as far as I can tell, the result, was what Kerr (along with Jack Balkin and many others) were criticizing back then. In fact, it would be very odd if Kerr were criticizing the result, since, as Anderson points out, he agrees that the program is illegal under FISA.

97

Anderson 04.02.10 at 5:08 pm

91, see 92.

98

Glenn Greenwald 04.02.10 at 5:09 pm

Sebastian:

You don’t think that anyone who disagrees with you on any issue could possibly be reasonable. The kind of humility marked by “I truly believe this, but I could be wrong” just isn’t something that crosses your mind.

Here’s what I wrote on the single most contentious political debate of the last six months – – health care reform:

I’ve said from the start that there are reasonable arguments on both sides and that one must weigh (a) the corrupt, mandate-based strengthening of the private insurance industry, the major advancement of the corporatism model of government, the harm this is likely to do to some who are now covered and some who cannot afford the forced premiums, and the chances for a better bill if this one is defeated, versus (b) the various substantial benefits to many people who do not now have and cannot obtain health insurance and the risk that defeat of this bill will ensure preservation of the status quo. Weighing those factors is difficult and, at least for me, produces ambivalence.

And: “Whether progressives are doing the right thing in supporting this bill is debatable (there’s a strong progressive case for the bill — any bill that restricts industry abuses and vastly expands coverage is inherently progressive — and a strong progressive case that it does more harm than good).”

Now, what were you saying?

As I said from the start, I think many — most — political disputes involve reasonable arguments on both sides.

The issues I tend to write about most — torture, aggressive war, illegal surveillance, putting people in cages for life with no charges — are not among them.

I don’t think it’s a sign of intellectual superiority to pretend that every issue has reasonable arguments on both sides. I think it’s a sign of intellectual emptiness and moral depravity to believe that.

You cite cases where you have complimented Orin when he agreed with YOU as if that spoke to what we are talking about. It does not. The way you write is to assert that disagreeing with YOU is evil.

Right – that’s the point. I don’t write based on personal feelings or whether I like or dislike someone. I assess their arguments. When Kerr or anyone else says something I think is right, I say so; when I think they’re wrong, I say so. What matters to me is the idea, not the person.

As for this — “The way you write is to assert that disagreeing with YOU is evil” — I just proved that to be false.

Whether an idea is “evil” has nothing to do with whether someone disagrees with me. Whether an idea is “evil” is determined by the idea itself.

There are plenty of people who disagree with me who I don’t suggest are evil. I disagree with what Henry has written here — rather strongly. I’m pretty sure I don’t think and haven’t implied that he’s evil as a result.

99

Marc 04.02.10 at 5:10 pm

Rich: so, basically, demonizing people that you disagree with is A-OK because you’re a good guy and lack the power to throw people in dungeons.

Basically that is your entire contribution here – to sneer that Glenn is doing God’s work and anyone who doesn’t like his tactics is a pansie and whiner because you know you’re always right, as does Glenn, and bad people oppose him. Thus everyone who opposes him is bad. Do I have this straight?

100

Anderson 04.02.10 at 5:13 pm

As several commenters have pointed out, Greenwald is right about this: whether or not the opinion discusses the merits, the court had to implicitly find the program unlawful to grant the plaintiffs summary judgment.

What I’ve missed thus far is any discussion of case law on the effect of such an “implicit” finding. Outside of that, it’s all breeze-shooting.

Another way to think about it: does Walker’s op provide a sufficient basis to enjoin the program in question?

101

Orin Kerr 04.02.10 at 5:14 pm

In my experience, there are people who think I am fair and honest; there are people who think Glenn Greenwald is fair and honest; but there is no one who thinks *both of us* are fair and honest. Given that, I don’t expect anyone who believes Greenwald’s claims to be open to changing their minds. But for what it’s worth, I responded to most of the points Greenwald is making now several years ago, when he first made them:

http://volokh.com/posts/1225942261.shtml

http://volokh.com/archives/archive_2008_11_09-2008_11_15.shtml#1226261980

102

Glenn Greenwald 04.02.10 at 5:25 pm

SEBASTIAN WROTE:

You don’t think that anyone who disagrees with you on any issue could possibly be reasonable

Last month, I defended the Citizens United majority, and Larry Lessig wrote to disagree with what I argued. About that, I wrote on my blog:

I spent substantial time over the last week here and in other venues partially defending the Citizens United ruling; yesterday, Harvard Law Professor Larry Lessig responded to my arguments. I disagree with several of his points, but as I said, this is a hard case and his objections are reasonable and worth reading.

I then did a radio debate with him on this issue and wrote:

Permit me to risk once again provoking the hornets’ nest by recommending this 20-minute discussion I had on Monday night with Harvard Law Professor Larry Lessig on The Young Turks. At The Huffington Post, Lessig wrote this response to the arguments I made about the case, and we had what I thought was a very constructive and enlightening discussion of the relevant issues:

That — despite the fact that he and I fundamentally disagreed on that case and the issues involved.

You’d have to agree that exactly what you said I never do is what I, in fact, do and did.

103

Raghav 04.02.10 at 5:29 pm

Another way to think about it: does Walker’s op provide a sufficient basis to enjoin the program in question?

It might; the opinion directs the plaintiffs to choose whether or not to pursue their remaining claims, and if not, then to submit a request for (among other things) equitable relief to which they believe they’re entitled, presumably including an injunction.

104

Bloix 04.02.10 at 5:44 pm

#83- you quote Kerr as saying:
“The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. “

This statement is false. When a defendant is sued, it cannot avoid a ruling on the merits by refusing to argue the merits. If the plaintiff proves its case, it wins, whether the defendant chose to defend or not.

Here, the plaintiff said, “We were harmed by this unlawful program and we can prove it.” The Government said, “Judge, you cannot rule on the legality of our conduct.” The Judge said, “yes, I can. The plaintiff has provided evidence that your conduct was unlawful. You want to defend your conduct now?” The Government said, “Judge, you cannot rule on the legality of our conduct.” The Judge said, “Are you deaf? You want to defend yourself or not?” The Government said, “Judge, you cannot rule on the legality of our conduct.” The Judge said, “Okay, we’re done playing games. I find that your conduct was unlawful.”

So the decision does rule that the program was unlawful. You can’t rope-a-dope a federal judge, not even if you’re the Justice Department.

Scott Horton understands this. He writes, “Yesterday, Judge Vaughn Walker, a conservative Reagan appointee, became the third federal judge to conclude that at least some aspect of the Bush Administration’s terrorist surveillance program was illegal.” Yet Kerr continues to deny it.

It’s possible that Kerr doesn’t understand what the judge did because, as a criminal lawyer, he’s not familiar with the standards for establishing civil liability on a motion for summary judgment. It would be shocking if that were the case, but it’s the only plausible good faith explanation for his error.

105

cs 04.02.10 at 5:49 pm

Maybe this should go without saying, but… I see a few commenters who claim to agree with Greenwalds politics but not his tone.

I would say that you should advocate for your positions in what you condsider to be the ideal way, and let Greenwald advocate for his positions in what he considers to be the ideal way. Why should you get so worked up about how he does his thing?

In other words, if you think his sort of advocacy could be more effective if done with a more conciliatory tone, what’s stopping you from taking up the cudgel?

106

Bloix 04.02.10 at 5:53 pm

PS to #96- there’s nothing “implicit” about the finding of illegality. It may be hard for you to see because the Judge does not say, “the program is illegal.” He says, “defendants have failed to establish the existence of a genuine issue of material fact warranting denial of plaintiff’s motion for summary judgment on the issue of defendant’s liability under FISA.”

That’s not implicit, it’s explicit. It happens to be lawyerly gobbledygook, so it’s clear as a clean windowpane on a sunny spring day to me, but probably not to you. That’s what people like Kerr are for- to let you know that this means, ‘Plaintiff’s have proven that the defendants broke the law.” Instead, Kerr either misrepresents what this means, or he doesn’t understand it himself.

107

Orin Kerr 04.02.10 at 5:54 pm

Bloix,

The question as to Judge Walker is what it means to make a “ruling.” In my experience, a ruling refers to a judge considering two arguments and then picking one, explaining why that side is more persuasive. But if a party decides not to argue an issue, we don’t generally say that a judge has “ruled” on the issue not adjudicated or considered. That’s my experience, at least.

Take the case of a default judgement. Imagine I sue you, saying you are a space alien who stole my soul and that I am entitled to $100. You decide not to show up to defend the charge, and the judge enters a judgment in my favor. Did the judge rule that you are a space alien who stole my soul? I would think the answer is no. Do you disagree?

As an aside, I am kind of puzzled as to why some are so worked up about whether a judge has said the TSP was illegal. We know a lot more about the law here than the judges, and we all agree it’s illegal. Why does it matter whether Judge Walker happens to agree? The program was illegal, and it was illegal regardless of whether a judge says it’s legal, says it’s illegal, or doesn’t answer the question.

108

Orin Kerr 04.02.10 at 5:58 pm

Bloix says:

*****
He says, “defendants have failed to establish the existence of a genuine issue of material fact warranting denial of plaintiff’s motion for summary judgment on the issue of defendant’s liability under FISA.”
*****

Does that also mean that the Judge has considered all possible legal defenses *not raised by the parties* and found that they do not apply?

109

LizardBreath 04.02.10 at 6:00 pm

But if a party decides not to argue an issue, we don’t generally say that a judge has “ruled” on the issue not adjudicated or considered. That’s my experience, at least.

As a civil litigator, my experience is to the contrary. Even in the case of a default, the moving party has to put forth arguments and evidence sufficient to entitle it to relief — if the judge grants the relief desired, they’re “ruling” on the sufficiency of the movant’s arguments. (In your ‘space alien’ example, I’d expect the judge to dismiss sua sponte — wouldn’t you?)

110

LizardBreath 04.02.10 at 6:03 pm

Does that also mean that the Judge has considered all possible legal defenses not raised by the parties and found that they do not apply?

No. But you could say the same of any ruling, regardless of how vigorously the parties litigated it — there’s always some other possible argument a party might have raised, and if they didn’t actually raise it, the judge probably didn’t consider it. It’s still a ruling, though.

111

Orin Kerr 04.02.10 at 6:11 pm

******
No. But you could say the same of any ruling, regardless of how vigorously the parties litigated it—there’s always some other possible argument a party might have raised, and if they didn’t actually raise it, the judge probably didn’t consider it. It’s still a ruling, though.
******

But a ruling as to what? I don’t agree with the Bush Administration’s argument, but their argument is that the surveillance was lawful because of arguments never made. If we’re asking whether the decision rejected the Bush Administration’s position that the monitoring was lawful, isn’t the answer “no, because the argument was not considered”?

112

LizardBreath 04.02.10 at 6:22 pm

You have to get very specific about the question you’re asking to be able to say that the judge didn’t rule.

If you ask “Did the judge rule that the surveillance was unlawful”, the clear answer is yes. The judge looked at the motion, and decided that the evidence and arguments were sufficient to rule in favor of the movants.

If you spell out a possible argument that the Justice Department might have made in defense of the surveillance, and ask “Did the judge rule that that specific argument was incorrect?” you can get a no answer. But the question you ask has to be exactly that specific — there really was a ruling on the legality of the program, and the fact that the DOJ didn’t raise its possible defenses doesn’t make that not a ruling.

113

LizardBreath 04.02.10 at 6:25 pm

(On the larger issue of the post, and Greenwald’s tone, and all that — what I’ve just said appears to me to be obvious enough to justify a great deal of exasperation. Greenwald’s reaction seems not in the least unreasonable, in context.)

114

Orin Kerr 04.02.10 at 6:31 pm

Lizard Breadth,

You’re playing lawyerly games here to make a simple issue seem complicated. I’m asking a simple and direct question: Did the judge reject the Bush Administration’s views? That’s the issue. The proper answer is “no, he never ruled on them because they were not argued.”

115

Rich Puchalsky 04.02.10 at 6:33 pm

“Rich: so, basically, demonizing people that you disagree with is A-OK because you’re a good guy and lack the power to throw people in dungeons.”

No, Marc. I’m saying that “demonizing” people (by saying that they are apologists — oh no) who defend torture, indefinite detention, and illegal surveillance is A-OK, because I think that all moral people should be able to agree that those are in fact corrupt and evil policies. People should able to morally condemn people who defend them, if moral comdemnation is to exist in the public sphere at all.

The “pansie[s] and whiner[s]” are the people who present every policy disagreement as if it is about traffic tickets, and who therefore react as scolds to the tone of what is said no matter what the content.

As for throwing people into dungeons, that only came up because of Sebastien’s ridiculous comparison to McCarthy. But you can rest assured, if it makes you more comfortable, that I do not support throwing anyone into dungeons. I do support forthrightly saying that they are apologists for Bush policies if they are apologists for Bush policies.

116

Orin Kerr 04.02.10 at 6:38 pm

LizardBReadth:

********
But the question you ask has to be exactly that specific—there really was a ruling on the legality of the program, and the fact that the DOJ didn’t raise its possible defenses doesn’t make that not a ruling.
*******

But isn’t that the argument I made, even clearly saying it was a sort of technical objection? Here’s what I said:
************
I’ve seen some similar reports online, so I thought I would register a somewhat technical objection to this characterization of the opinion. The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance.
*********

http://volokh.com/2010/04/01/what-al-haramain-says-and-what-it-doesnt-say/

117

LizardBreath 04.02.10 at 6:38 pm

But you never asked that specific question before. The question has been “Did the judge rule that the surveillance was unlawful?” And he did. Full stop.

Did he specifically reject arguments not made before him? No, of course not. But he did rule on the legality of the program.

If you had originally posted something along the lines of “Judge Walker’s ruling on the legality of the program is made less weighty (or less convincing) by the fact that the DOJ failed to put forth arguments on that point”, you’d be getting much less flak. What you did say; “As a result, the decision doesn’t rule that the program was unlawful.” is straightforwardly false.

118

Anderson 04.02.10 at 6:40 pm

The district court wrote (emphasis added):

The court concludes that the nature of the wrongdoing by governmental actors alleged and established herein is official rather than individual or personal.

Moreover, the district court’s ruling relies on the proposition that a FISA warrant was required for TSP surveillance. To the extent that the TSP was a “warrantless surveillance program,” that would seem dispositive as to the program’s legality.

… Assuming “the TSP’s purported January 2007 termination,” could injunctive relief lie?

119

Glenn Greenwald 04.02.10 at 6:41 pm

ORIN KERR:

Did the judge reject the Bush Administration’s views?

Yes. The Bush administration’s view was that their conduct was legal. The court rejected that view and ruled it was illegal.

Sometimes a party loses because they make bad arguments. Sometimes they lose because they refuse to make any arguments. But they still lost.

Judges don’t automatically grant summary judgment just because one party fails to submit arguments. The judge has to first decide that the moving side presented a prima facie case.

Here, the plaintiffs presented a prima facie case that the Bush administration broke the law, the DOJ did nothing to refute that, and the Judge — after considering the arguments before him — ruled against the Bush administration.

That’s exactly what happened with Judge Taylor, too. She explained why she agreed with the plaintiffs, but she did not address the Bush DOJ’s arguments about the legality of their conduct at length or in detail because they didn’t make any. That’s what made your criticisms of her so frivolous.

120

LizardBreath 04.02.10 at 6:43 pm

(A side note: in most contexts, I’d let this pass, as not the sort of thing that bothers me all that much. In the context of a post about who is uncivil and who is unjustly put upon, I should say that I take exception to this: “You’re playing lawyerly games here to make a simple issue seem complicated,” and don’t believe it’s justified by anything I’ve said in this thread.)

121

roac 04.02.10 at 6:44 pm

In support of LizardBreath at 108: All I know about this litigation is what has been asserted in this thread, but it appears to me that Rule 55(d) of the Federal Rules of Civil Procedure applied:

Judgment against the United States. A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.”

Getting a default declared against your opponent is a simple mechanical exercise. Converting it to a default judgment is not necessarily much less laborious than trying the case. It depends on what you want from the court.

122

Anderson 04.02.10 at 6:49 pm

Concur that “lawyerly games” was uncivil, btw. As well as pleonastic.

123

Orin Kerr 04.02.10 at 6:52 pm

Glenn Greenwald,

You’re altering the level of generality to change the question. The Bush Administration’s view was that the monitoring was legal because either Article II or the AUMF trumps the plaint text of the FISA statute. That was the legal debate we had in 2005-2007, and that everyone was focused on Can you point me to the part of the opinion that rejects that argument?

124

Glenn Greenwald 04.02.10 at 6:52 pm

t Rule 55(d) of the Federal Rules of Civil Procedure applied:

This was a Motion for Summary Judgment, governed by Rule 56, which requires the moving party to prove they’re entitled to judgment.

Read pages 2-3 of the Court’s decision – Judge Walker explicitly says the plaintiffs submitted evidence showing they’re entitled to judgment (because they were subjected to illegal surveillance) and the Government did not refute it. It was a ruling on the merits in every sense:

http://static1.firedoglake.com/28/files/2010/03/100331-al-Haramain-Order.pdf

125

Orin Kerr 04.02.10 at 6:54 pm

An apology to Lizard Breath: I should not have said that he was playing “lawyerly games.” I was a bit exasperated by his suggestion (and those of others in this thread) that I was the one playing lawyerly games, and I was uncivil in saying that he was doing so. My apologies.

126

Orin Kerr 04.02.10 at 6:59 pm

Glenn,

Just so I understand, your view is that Judge Walker considered the arguments that the parties had not raised, and then ruled on them without discussing them or even naming them? If I understand you correctly, can you be be specific as to which arguments not raised or mentioned were rejected?

127

roac 04.02.10 at 7:02 pm

I don’t take “lawyerly games” as uncivil. Basketball players play basketball games. Lawyers play lawyerly games. Academics, I have no doubt, play academic games. And so on. In any line of work, you have to learn the rules and develop the skills. If the rules are fair and the skills are roughly equal, the outcome tends to be (approximately) correct.

128

Glenn Greenwald 04.02.10 at 7:02 pm

ORIN KERR

That was the legal debate we had in 2005-2007, and that everyone was focused on Can you point me to the part of the opinion that rejects that argument?

The Court didn’t explicitly discuss those arguments because the DOJ didn’t raise them.

BUT: the plaintiffs raised them by submitting to the court what the Bush administration’s arguments were (Article II and AUMF) and lengthily proving they were wrong:

http://www.eff.org/files/filenode/att/alharamainmotion7909.pdf

See pages 16-31 of the Plaintiff’s Brief in Support of Summary Judgment.

The Court said that the plaintiffs proved they were subject to illegal surveillance (see pp. 2-3 of the decision), which is necessarily a ruling that the plaintiffs were right and therefore were entitled to judgment.

I honestly think this stems from your ignorance about how civil litigation works — ignorance you’ve previously admitted. If a party doesn’t raise arguments, a court won’t spent much time on them – or even any time — but the Court is still necessarily ruling on them by granting plaintiffs Summary Judgment.

The Court could not and would not have granted Plaintiffs Summary judgment unless they submitted arguments and evidence that the eavesdropping was illegal.

That’s why Judge Taylor discussed these arguments but not extensively: she had to explain why plaintiffs were entitled to win, but didn’t discuss the arguments at length because they weren’t raised.

129

LizardBreath 04.02.10 at 7:03 pm

121: None taken.

122: Golly, I wouldn’t have read that (“that Judge Walker considered the arguments that the parties had not raised, and then ruled on them without discussing them or even naming them”) as Greenwald’s view at all. More just that Judge Walker ruled on the legality of the surveillance program. This may be where you’re misunderstanding him.

130

Bloix 04.02.10 at 7:14 pm

#117 – this was NOT a default judgment under Rule 55. A default judgment is entered when one side simply doesn’t show up at all.

This was a summary judgment under Rule 56. Summary judgment is a device for deciding a case without trial where there are no contested facts – no need to judge the credibility of witnesses, and therefore no need for oral testimony.

Under Rule 56, the moving party – here, the plaintiff – must show that it is “entitled to judgment as a matter of law.” Rule 56(c)(2). What that means is that the judge must consider the uncontested facts, apply the law to those facts, and decide whether or not the plaintiff has proven its case.

Even if the defendant does nothing, the plaintiff will lose if it has not proven its case.

The Court has no obligation to decide for the defendant how to argue its case. The defendant may have an argument that even if the elements of the offense are proven there’s no liability – “yes, I did spy on them in violation of FISA, but AUMF allowed me to!” But the defendant has the obligation to make the argument. Once the plaintiff has proven its case, the Court won’t go looking for defenses that the defendant chooses not to make.

Kerr now seems to want to argue that the DOJ took a dive by not raising AUMF. We could have that argument, I suppose, but that’s not the argument we are having. Kerr stated that the judge did not find that the conduct was illegal. That’s false.

131

roac 04.02.10 at 7:21 pm

I stand corrected by 123. But the judge’s obligation is the same under both rules.

In any case where one party is not putting up a fight, because it has no lawyer or an incompetent one, any halfway conscientious judge will make an effort to take up the slack. (This can be dangerous for the other side, as the judge may find himself very persuasive.) The effort can be fairly cursory in the case of some tinfoil-hatted pro se plaintiff — but in something of this importance, I would take it for granted that Judge Walker thought long and hard about the law.

132

Orin Kerr 04.02.10 at 7:22 pm

Glenn Greenwald:

I honestly think this stems from your ignorance about how civil litigation works—ignorance you’ve previously admitted.

If you’re right that a civil ruling counts as a rejection on the merits of possible defenses to liability not actually raised by the parties, that would be news to me. That’s not my experience as a law clerk, either at the Court of Appeals or the U.S. Supreme Court, which is my main civil litigation experience: We always treated issues not actually litigated as not having been decided. Take an example from Supreme Court litigation. The Supreme Court’s rejection of constitutional challenges to the Sentencing Guidelines in Morrison v. Olson did not mean that all constitutional challenges were meritless: It only meant that the Court rejected that one litigated argument. Indeed, the Court later struck down the guidelines in Booker on grounds not argued in Olson.

How about this: If you provide me the case citations showing me that your position is right (specifically, that a ruling for the plaintiffs means that the court considered and rejected on the merits all possible defenses not raided by the defendants), and I’d be happy to read the cases and post on this. If you’re right on this and I’m wrong, and Judge Walker really did silently rule on the issue, I’d be happy to make the correction in the form of a new post. Just pass on the citations when you get a chance, thanks.

133

Orin Kerr 04.02.10 at 7:24 pm

Bloix:

Kerr now seems to want to argue that the DOJ took a dive by not raising AUMF. We could have that argument, I suppose, but that’s not the argument we are having. Kerr stated that the judge did not find that the conduct was illegal. That’s false.

Bloix, I think you really need to re-read my initial blog post. My argument from the beginning was that the Obama Administration didn’t make the Bush Administration’s arguments, so there was no ruling on those unmade arguments.

134

LizardBreath 04.02.10 at 7:27 pm

Back to 116: Orin, part of what’s so exasperating about your position is this: “I thought I would register a somewhat technical objection to this characterization of the opinion. ”

If I were going to restate the argument I think you’re making, it’d come out something like: “Judge Walker’s ruling that the surveillance program was unlawful shouldn’t be thought of as a reasoned rejection of the Bush Administration’s arguments in favor of the legality of the surveillance program, because the DOJ tactically chose not to make those arguments before Judge Walker.” And that’d be arguable. But there’s no sense in which it’s “technical[ly]” true that the “decision doesn’t rule that the program was unlawful. ” If we’re being “technical”, that statement is false.

135

Orin Kerr 04.02.10 at 7:33 pm

Incidentally, I have a long-ish response to Glenn that unfortunately is being “held for moderation.”

136

Orin Kerr 04.02.10 at 7:34 pm

Glenn Greenwald:
********
I honestly think this stems from your ignorance about how civil litigation works—ignorance you’ve previously admitted.
********

If you’re right that a civil ruling counts as a rejection on the merits of possible defenses to liability not actually raised by the parties, that would be news to me. That’s not my experience as a law clerk, either at the Court of Appeals or the U.S. Supreme Court, which is my main civil litigation experience: We always treated issues not actually litigated as not having been decided. Take an example from Supreme Court litigation. The Supreme Court’s rejection of constitutional challenges to the Sentencing Guidelines in Morrison v. Olson did not mean that all constitutional challenges were meritless: It only meant that the Court rejected that one litigated argument. Indeed, the Court later struck down the guidelines in Booker on grounds not argued in Olson.
How about this: If you provide me the case citations showing me that your position is right (specifically, that a ruling for the plaintiffs means that the court considered and rejected on the merits all possible defenses not raided by the defendants), and I’d be happy to read the cases and post on this. If you’re right on this and I’m wrong, and Judge Walker really did silently rule on the issue, I’d be happy to make the correction in the form of a new post. Just pass on the citations when you get a chance, thanks.

137

LizardBreath 04.02.10 at 7:36 pm

You didn’t mention socializm, did you?

138

rea 04.02.10 at 7:37 pm

Did the judge reject the Bush Administration’s views? That’s the issue. The proper answer is “no, he never ruled on them because they were not argued.”

It is axiomatic that a decision resolves, not only those isses actually litigated, but also all those issues arising out of the same transaction or occurrence that the parties, in the exercise of reasonable diligence, could have litigated but did not.

139

Orin Kerr 04.02.10 at 7:38 pm

LizardBreadth,

Yes, that is my argument: That’s what my post and this thread was about, I have thought.

140

Orin Kerr 04.02.10 at 7:40 pm

*******
It is axiomatic that a decision resolves, not only those isses actually litigated, but also all those issues arising out of the same transaction or occurrence that the parties, in the exercise of reasonable diligence, could have litigated but did not.
********

Can you give me a citation for that? Just to be clear, the issue isn’t whether the judgment has some res judiciata effect, but rather whether Judge Walker considered and rejected the arguments not raised without explicitly saying so.

141

roac 04.02.10 at 7:40 pm

Repeating and amplifying what I said in 131: Judge Walker must have familiarized himself with the Bush Administration’s arguments. The fact that DOJ didn’t make them in this case wouldn’t have prevented him from applying them to uphold the surveillance program if he was persuaded by them.

142

ScentOfViolets 04.02.10 at 7:48 pm

Greenwald: “You like Kerr and think he’s “moderate” and reasonable. That’s nice. But that’s not how I write. ”

Right. You don’t think that anyone who disagrees with you on any issue could possibly be reasonable. The kind of humility marked by “I truly believe this, but I could be wrong” just isn’t something that crosses your mind. We get that. Which is why you reduce everything to views that agree with yours (good views) and views that don’t (unspeakably evil, disgusting and horrible views).

Again, as per Henry: perhaps this argument can be made. But you’re not the person who can make this argument, given your past observed behaviour. I note this not to pick on Sebastian, but because of this comment:

Thanks to Sebastian for providing another example. Note here that “McCarthyism” is reduced to a style of disagreement, as if McCarthy and Greenwald have equal amounts of institutional power. It is also contentless—call everyone to your left a Communist, call someone who defended some Bush policies a sometime apologist, it’s all the same thing.

Note also that the objection is phrased as a demand for “humility”. Greenwald must surround his claims with “I truly believe this, but I could be wrong” as a sort of marker that tells us that he is a humble person. It is all about Greenwald’s personal virtue, after all—that is what is important here.

Note also that a moral claim has become a matter of style. Greenwald forthrightly says that he refuses to write as if this is a matter on which sensible people can disagree. And Sebastian makes that all about Greenwald’s writing style and, by extension, his personality. It’s no longer about moral condemnation at all, or, at least, moral condemnation itself is assumed to be just a subset of McCarthyism, no matter what it is about.

I guess I shouldn’t be surprised that a question of law will be argued in a fashion stereotypically applied to lawyers, you know, “If the facts are on your side, pound the facts, if the law is on your side pound the law, and if neither the facts nor the law are on your side, pound the table.” But really, this sort of arguing strikes me as something that should be confined to couples counseling; what should properly be matters of fact and logic seem to favor of one side, so the grounds are then shifted so that the proposition is not one that can be right or wrong, correct or incorrect, but instead, devolves into undecidable opinions. In this specific case, it seems that the issue has been turned into, well, not whether Greenwald is correct, but whether he is arguing in an “ungentlemanly” or unmannerly fashion. And we all know how that one goes: “I’m just throwing out a few well-deserved but mild zingers, and witty ones at that in a spirited discussion, you’re reacting in a completely uncalled-for, over-the-top hysterical and hateful fashion.” That may or may not be true by various lights, but it’s certainly not an intrinsically decidable proposition, now, is it? And what was once a clear-cut call for one view at the expense of another proponent has been dragged out by the latter into a “tie”, an odious tactic, imho. Let me stress that discussing undecidables is not inherently bad or unfair. It is shifting the grounds and rules in mid-game that is objectionable.

143

Anderson 04.02.10 at 7:50 pm

The fact that DOJ didn’t make them in this case wouldn’t have prevented him from applying them to uphold the surveillance program if he was persuaded by them.

Really? I might allow that a district court *may* deny summary judgment on its sua sponte apprehension of points of law not briefed; but I am not aware of said court’s being *required* to do so, or of any presumption that it *has* done so.

I was interning for a district court judge when I drafted an order granting relief to a plaintiff on a legal theory she did not advance, only to have the judge correct me and say that we were not going to make the parties’ arguments for them.

144

LizardBreath 04.02.10 at 7:50 pm

Yes, that is my argument: That’s what my post and this thread was about, I have thought.

It is not at all what your post said. What your post said was “As a result, the decision doesn’t rule that the program was unlawful.” The decision does rule that the program was unlawful — the relief it grants rests fundamentally on that ruling. There is no “technical” sense in which what you said was true — to get to what you meant, which I apparently did successfully, I had to make a deductive leap to get to the closest defensible claim. (And while my version of your argument is defensible, it’s really very trivial — I’m not clear what interesting consequences you think flow from it.)

145

Bloix 04.02.10 at 7:52 pm

Prof Kerr, I’m coming around to the conclusion that you don’t understand how civil litigation works. It’s amazing but apparently it’s true. You’re apparently unaware that, if a defendant chooses not to argue an affirmative defense, it’s waived. The court need not rule on it, because it is not part of the case. This is the difference between the plaintiff’s obligation to prove the elements of its cause of action – to prove its case – and the defendant’s obligation to prove any affirmative defenses that it may have, and it’s a distinction that you don’t appear to understand.

You can argue that the Government’s decision not to make the AUMF argument was a mistake. You can say that if the DOJ had chosen to make the argument, the judge might have ruled differently. You can even say that the court didn’t rule on the defense , because it was waived. But you can’t truthfully assert, as you did, that “the decision doesn’t rule that the program was unlawful. ” It DOES rule that the program was unlawful.

146

Orin Kerr 04.02.10 at 7:57 pm

LizardBreadth,

It seems to me that we had a simple misunderstanding about my argument. Sorry I wasn’t clearer. As for the interesting consequences that followed from my argument, now that it’s understood, I don’t think there are any, which is why I said repeatedly that it was just a technical objection.

But then that brings us to the main point, I think: This is a minor misunderstanding about a technical issue, not a battle between the forces of good and the forces of evil.

147

Orin Kerr 04.02.10 at 8:02 pm

Bloix,

Yes, I know it’s waived for purposes of that litigation. If you don’t raise it, you lose it. But that’s not the issue we’re discussing, or at least that’s not the issue I have been discussing.

Perhaps we’re just disagreeing about what the question is rather than what the answer is. Consider two distinct questions:

a) Is the ruling officially on the merits for purposes of this litigation based on this complaint?

vs.

b) Did Judge Walker consider and reject the Bush Administration’s arguments in favor of the lawfulness of the terrorist surveillance program?

I think the answer is yes to (a) and no to (b). My post that started this off was about (b), not (a). I agree that the answer to (a) is yes, but that’s obvious, trivial, and (it seems to me) not of any public interest. The interesting point is that the answer to (b) is different from the answer to (a), which is why I wrote my post.

148

LizardBreath 04.02.10 at 8:06 pm

It seems to me that we had a simple misunderstanding about my argument. Sorry I wasn’t clearer.

You weren’t unclear. You were clear, and you were wrong, and you couched a false statement as a “technical” correction of an article that was, in fact, correct.

As for the interesting consequences that followed from my argument, now that it’s understood, I don’t think there are any,

Fair enough. I do think your error was worth correcting with a fair amount of force, because it’s the sort of error that could lead a naive reader to believe, incorrectly, that no court had ruled on the legality of the surveillance program.

149

Orin Kerr 04.02.10 at 8:06 pm

As as aside, am I right that posts 132 and 136 haven’t appeared yet? It’s my response to Glenn, and it’s pretty frustrating that it is being blocked.

150

kid bitzer 04.02.10 at 8:08 pm

there’s no standing internet abbreviation for “i am not a lawyer, just a professor of medieval french lyric”. tant pis..

however: what i hear is somebody vacillating between
1) the program was not ruled illegal by the court
and
2) certain arguments for the program’s legality were not explicitly rejected by the court.

and it looks to me like someone publicly committed himsef to 1), and when he was called on it by someone else, retreated to 2), which is an entirely different question, and makes a much weaker sound-bite on fox news. and is now on this threaded continuing to dance between 1) and 2), in a way that does not do him credit.

but then, ianaljapomfl.

151

Glenn Greenwald 04.02.10 at 8:08 pm

BLOIX:

Prof Kerr, I’m coming around to the conclusion that you don’t understand how civil litigation works.

He absolutely doesn’t. When it suits him, he admits that, as he did after writing paragraph after paragraph attacking Judge Taylor’s ruling: “That’s my sense, at least. I’m not an expert in the area of civil litigation, so please help me out if you think I’m wrong. “

That’s fine. We can’t all be experts in everything. I’m not an expert in criminal procedure, and wouldn’t purport to be – as a result, I wouldn’t run around attacking Judges’ decisions on such matters and didactically opining about it in the New York Times: certainly not without spending a huge amount of time first informing myself.

He doesn’t do that. He constantly spouts off about these matters despite not knowing what he’s talking about. He opined about both Judge Taylor and Judge Walker’s opinions in the New York Times out of total ignorance of what those judges decided based on the relevant procedural postures of the case (Ann Althouse did it even worse).

That’s what I say “apologist” – each time, the ignorance-based comments are devoted to defending Bush lawbreaking (by impugning the quality of Judge Taylor’s opinion — all because she didn’t address in detail arguments the Bush DOJ refused to raise — and now by insisting that Judge Walker didn’t rule the NSA program illegal when he plainly did).

152

LizardBreath 04.02.10 at 8:10 pm

The interesting point is that the answer to (b) is different from the answer to (a), which is why I wrote my post.

This, you don’t know. You have no idea what Judge Walker considered in arriving at his ruling — he might have considered and rejected all the legal arguments in favor of the legality of the surveillance program that you, too, have considered and rejected. The strongest thing you can say truthfully is that you don’t know whether or not Judge Walker considered those legal arguments.

153

Glenn Greenwald 04.02.10 at 8:11 pm

ORIN: “As as aside, am I right that posts 132 and 136 haven’t appeared yet? It’s my response to Glenn, and it’s pretty frustrating that it is being blocked.”

I don’t think they’re appearing yet. That happened to me yesterday. The first comment I left kept saying “pending moderation.” I emailed Henry, but in the meantime, just re-posted it, and when I did, it appeared without moderation.

Try re-posting them. That should work.

154

Anderson 04.02.10 at 8:11 pm

Notice this sentence from the NYT story, which it appears is what drew Prof. Kerr’s attention:

The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful.

Kerr’s response seems to be that no such blow was dealt to the “claims” because no such claims – which of course were not mere “claims” but were arguments – were addressed. If so, he probably misspoke in his post — the program is “unlawful” according to the district court, but the “Bush administration claims” were not addressed, which I think is what he meant to focus on, not the lawfulness/unlawfulness.

155

Cranky Observer 04.02.10 at 8:11 pm

> Glenn Greenwald @98
>
> As I said from the start, I think many—most—political disputes involve reasonable
> arguments on both sides.
>
> The issues I tend to write about most—torture, aggressive war, illegal surveillance,
> putting people in cages for life with no charges—are not among them.
>
> I don’t think it’s a sign of intellectual superiority to pretend that every issue has
> reasonable arguments on both sides. I think it’s a sign of intellectual emptiness and
> moral depravity to believe that.

Thank you Mr. Greenwald; very well-said.

Cranky

156

Orin Kerr 04.02.10 at 8:12 pm

Glenn,

It seems my long response to you hasn’t gone through, and is being held by the moderator, so here’s a shortened version:

If I’m wrong, I’d be happy to correct the error and say so publicly and prominently on the blog. Can you send me some case citations so I can see the cases you have in mind? Specifically, you say that in ruling on the motion for summary judgment, Judge Walker implicitly considered and ruled on the merits on all of the defenses that the defendants did not make. Can you post some citations for that?

157

Orin Kerr 04.02.10 at 8:13 pm

Oh, and it should be “did not raise,” not “did not make.”

158

Bloix 04.02.10 at 8:19 pm

“I agree that the answer to (a) is yes, but that’s obvious, trivial, and (it seems to me) not of any public interest. “

I don’t know if you use the Socratic method, but it’s my recollection from law school that the very first thing you had to do was get the holding right. You got it wrong.

Now, having known some in my life, I can see that, to a law professor who never descends from the library stacks, the actual outcome of a case might be of no interest. But to the public, I would think, it’s of great interest that a Muslim charity called Al Haramain proved in a court of law that the United States of America illegally spied on it.

You can argue, as we litigators do all the time, that the court was wrong, that the defense strategy was mistaken, that the key issues weren’t presented, that the decision will be reversed on appeal, yada yada yada. But the first thing that you must say is that the court found that the United States of America broke the law. This is crucial to any honest debate.

159

LizardBreath 04.02.10 at 8:20 pm

Specifically, you say that in ruling on the motion for summary judgment, Judge Walker implicitly considered and ruled on the merits on all of the defenses that the defendants did not make. Can you post some citations for that?

For those of us trying to follow along at home, can you link to or quote Glenn saying that? I haven’t seen him say anything in this thread that could fairly be restated in those words.

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Glenn Greenwald 04.02.10 at 8:21 pm

ORIN:

Specifically, you say that in ruling on the motion for summary judgment, Judge Walker implicitly considered and ruled on the merits on all of the defenses that the defendants did not make. Can you post some citations for that?

I already gave you these cites:

I’m asking you this genuinely: do you know how Summary Judgment Motions work under Rule 56?

You seem to be assuming that one side automatically wins if they offer arguments and evidence and the other side doesn’t.

Therefore, you seem to think, the plaintiffs won because they made arguments and the DOJ didn’t. Therefore, it’s not a real ruling.

This is FALSE.

In order to win a motion for Summary Judgment, the moving party (in this case the plaintiffs) have to prove they’re entitled to judgment with arguments and evidence. The Court can only grant them the Motion if they do so — even if the other side says nothing.

Here, the plaintiffs made extensive legal arguments about why the NSA program was illegal. They specifically refuted the DOJ’s position that Article II and the AUMF justified warrantless eavesdropping.

I provided you with the link and the specific pages where they did that – above.

The Court, on pp 2-3 of its decision, explained that it was granting Summary Judgment because the Plaintiffs convinced the Court that they were entitled to it — BECAUSE THE SURVEILLANCE TO WHICH THEY WERE SUBJECTED WAS ILLEGAL.

Please go read the citations I provided and you’ll see that.

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Salient 04.02.10 at 9:02 pm

But then that brings us to the main point, I think: This is a minor misunderstanding about a technical issue, not a battle between the forces of good and the forces of evil.

Would you be so kind as to explain how to derive nontrivial consequences from this technical issue?

I don’t think I’m the only one who is making a great deal of inferences about broader points, orientations, and sympathies, all from your position on this technical issue; I’m willing to concede these could be unfair inferences.

So, it would be nice to hear from you clarification of what does, and what does not, follow from this narrow technical point. Suppose I were to grant that you’re right re: Walker’s ruling, what significance does this have?

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Salient 04.02.10 at 9:06 pm

Another way of phrasing my question: I understand that there’s often a difference between “narrow (technical)” and “trivial (not worth mentioning)” but that general fact about life doesn’t clarify what in the heck is going on here.

Orin, if the point of making the narrow technical argument wasn’t to support the proposition that the Bush administration’s arguments had merit, then what was the point?

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Anderson 04.02.10 at 9:10 pm

Orin, if the point of making the narrow technical argument wasn’t to support the proposition that the Bush administration’s arguments had merit, then what was the point?

Non-readers of the VC apparently do not realize that Prof. Kerr takes some pleasure in fine distinctions for their own sake, even without partisan implications. He also inclines to be scrupulous on judicial restraint (over-scrupulous, to some of us).

As I wrote above, I think he misspoke in his post, but the notion that he was attempting to defend the Bush-era Article II arguments, etc., is not supported by the record.

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Salient 04.02.10 at 9:12 pm

Oh, and I did read the original VC post, etc. To put the converse on the table, I’m having an equally hard time seeing why Glenn felt the post was so objectionable, but I’m not sure that the VC post convinced me that no “implicit” repudiation occurred.

In my view, everything’s hinging on rather impressively convoluted interpretations of what the word “implicit” or “implicitly” means.

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jny 04.02.10 at 9:24 pm

I’m posting here anonymously. I’ve had interactions with both Kerr on the Volokh Conspiracy threads and with Greenwald via e-mail. Both of them can be pretty annoying. (So can I.) Greenwald is a very much, get in your face, kind of guy. He’s given to hyperbole. But, he almost always has the facts an analysis to back up any actual argument he makes.

Kerr likes to position himself as an agreeable moderate bemusedly looking at the bomb throwers on the left and the right. In reality, Kerr is pretty far to one side of that spectrum and much more willing to look at facts through the Bush/Neocon/torture fanboy lens then he would like to admit. Also, Kerr spends quite a bit of time huffing and puffing about civility in his post on VC but, again, he seems considerably more concerned about the civility of posts that disagree with him than the civility of posts that agree.

In this particular little go round, Kerr is dead wrong. The Court’s opinion makes it clear that the court ruled that the surveillance was illegal. His comment about “Well this is how we looked at it when I was clerking for the Supreme Court” is perhaps the best indicator that he really doesn’t have much knowledge about civil litigation. I mean, his statement is akin to someone who is asked about interpretation of the residential plumbing code code to begin the reply with “Well, when I studied fluid dynamics at MIT …”

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Rich Puchalsky 04.02.10 at 9:36 pm

I am not a lawyer, and have no ability to contribute to the legal questions under discussion. I do think that Kerr’s characterization of the question of whether the judge really ruled whether the surveillance was illegal or not as a minor, technical point is shamelessly hacktastic if that’s what he’s saying, but I’ll leave that aside as something I’m not competent to address.

The question of whether Kerr is a Bush apologist rests, so far, on blog posts and on an indirect reference to Kerr’s opinion in an Althouse op-ed. Those are not really venues that have much direct public impact. In these cases I tend to look for more official interventions, and what a bit of Googling turned up is this: Kerr’s testimony (assuming that it is the same Orin Kerr) before the Senate on the Patriot Act. I think that testimony before the Senate is an important venue.

I would characterize the first part of Kerr’s testimony as an apologia. It characterizes the law as follows: “The truth is that the law is much more modest: Most of the Patriot Act consists of minor adjustments to a set of preexisting laws, such as the Foreign Intelligence Surveillance Act and the Electronic Communications Privacy Act.” This strikes me as a classic apologetic technique of minimizing the harm done by dwelling on something else, like the person who says “Well, so what if the criminal beat someone up this one time. You aren’t looking at all the other times when he didn’t beat someone up. ” What does the bulk of the act matter if some parts of it are highly objectionable?

Here’s a key edited quote that Kerr uses in this testimony. He quotes the ACLU as agreeing with him (ellipses are Kerr’s):

“most of the voluminous Patriot Act is actually unobjectionable from a civil
liberties point of view and . . . the law makes important changes that give law
enforcement agents the tools they need to protect against terrorist attacks. A few
provisions . . . must be revised. . . . .”

Here’s the actual ACLU quote in full:

“The ACLU said that most of the voluminous Patriot Act is actually unobjectionable from a civil liberties point of view and added that the law makes important changes that give law enforcement agents the tools they need to protect against terrorist attacks. A few provisions, though, unnecessarily trample civil liberties, and must be revised to bring them in line with the Constitution. “

What Kerr did with that quote is an apologia.

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Michael Drake 04.02.10 at 9:40 pm

I generally admire Orin’s work, but I would have to agree that he can be bloody-minded in ways that are difficult to distinguish from rank apologetics. For all that, I wouldn’t call him a “sometime- Bush apologist,” because I don’t see the use. (He changed his mind, didn’t he?)

Then again, I don’t think there’s much harm in Greenwald’s using the epithet. He’s simply writing in his chosen register. Those who put a higher premium on reasonable-seemingness will choose a different one. It will all work out.

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Heur 04.02.10 at 9:51 pm

Is my understanding correct that:

(1) The factual allegations raised by the plaintiffs concerning the surveillance program were evaluated solely in light of the evidence offered by the plaintiffs, as the DOJ did not offer any evidence in rebuttal?

(2) That, given that Judge Walker, in the absence of any evidence to the contrary, found these allegations persuasive, she then ruled based solely upon the plaintiffs’ allegations as to the nature of the electronic surveillance, and the lack of a warrant, that FISA was violated?

If these two statements are correct, then Kerr is correct that the ruling is not upon the legality of the actual surveillance program; instead, it is at best a ruling upon the legality of the particular electronic surveillance conducted upon the plaintiffs as alleged by the plaintiffs. The significance of the ruling lies in its approach to the states secrets privilege, not in its finding about the legality of the nature of the surveillance that plaintiffs alleged to have occurred.

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Bloix 04.02.10 at 10:50 pm

Heur-
(1) Judge Vaughn Walker is a he.
(2) The ruling is a ruling on the legality of the “actual surveillance program” as it was actually effectuated against these plaintiffs. American courts do not rule on legality in general; even in cases presented to the Supreme Court on issues of the greatest constitutional importance, they rule only on actual disputes between real people. Those real people are entitled to conduct their cases as they see fit. They do not have to make every argument that is potentially open to them.
(3) The United States of America chose not to contend in this case that UAMF or Article II trumps FISA. It does not matter that Owen Kerr can write an article about this argument, or that the United States might have made this argument if John McCain had been elected. The fact is that the United States did not make this argument.

I personally believe that the United States did not make this argument because it is an absurd and transparently bad-faith argument. I believe that the AUMF/Article II argument was never expected to be persuasive in a courtroom and that it was designed to provide cover for the Catch-22 state secrets argument (“you don’t have to be concerned that you can’t sue us for breaking the law because we’re not really breaking the law”). I believe that the United States did not make the argument because, after the opinion written by Judge Taylor (a she, by the way), it was not looking forward to losing it again. That’s an argument we can have.

But it’s not the argument we’re having. The argument we’re having is whether the court held that the United States broke the law when it used electronic surveillance against Al Haramain. The answer is that the court did so hold.

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Heur 04.02.10 at 11:09 pm

Bloix:

(1) So the court ruled on the legality of electronic surveillance conducted on plaintiffs, AS that electronic surveillance is described by the plaintiffs;

(2) Actually the claim put forth above, and by Greenwald in his post, is that the court ruled upon the legality of the surveillance program;

(3) If we could be certain of an identity between the allegations of the plaintiffs as to the nature of the electronic surveillance conducted, and the surveillance program, then Greenwald’s claim might be understood as correct, if imprecisely phrased. But since we cannot, we also cannot say that the court ruled upon the surveillance program even as Greenwald may have meant the claim.

Given the limitation of the ruling, it has almost no consequence for the larger question of the legality of the program. This is Kerr’s central point (and also in contradiction to the triumphal tone of Greenwald’s post).

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onymous 04.02.10 at 11:24 pm

IANAL, so I love the magical clarifying power of LizardBreath. I had no idea what was really going on here until reading her comments. Thanks, LB!

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Bloix 04.02.10 at 11:29 pm

I have to agree that LizardBreath manages to be both concise and correct, a combination that appears to be beyond my limited powers.

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Glenn Greenwald 04.02.10 at 11:41 pm

HEUR

Given the limitation of the ruling, it has almost no consequence for the larger question of the legality of the program.

These plaintiffs were surveilled under the NSA program. It was illegal BECAUSE it was done without FISA warrants. That IS the program — the “Terrorist Surveillance Program”: eavesdropping on Americans without FISA warrants.

It’s impossible for (a) the warrantless eavesdropping on these plaintiffs to be illegal (as the Court found) AND (b) the Bush warrantless eavesdropping program to be legal. (a) took place pursuant to (b).

You’re also confused about Kerr’s argument. He’s claiming there was NO ruling on the merits of the eavesdropping at all — merely a ruling about the State Secrets privilege. As soon as you acknowledge — as you do — that the Court ruled the eavesdropping itself illegal (even if only as to these plaintiffs), then you’re contradicting what Kerr said, even if you wish you weren’t.

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Glenn Greenwald 04.02.10 at 11:47 pm

HENRY – You said:

Not only amazing! But Shocking! Horrifying! Grotesque! Unbelievable! Bizarre! Unprecedented!

LFC – I thought that your first comment before #51 above was a deliberate (and at least mildly funny fwiw) parody. Evidently I was wrong.

I really wouldn’t get into litigating that whole nonsense again. You were wrong the first time, and you’ve misremembered it badly to boot.

this is a remarkably stupid pair of comments.

The next time you go to issue righteous sermons about the need for respect and civility in political discourse, definitely make sure to include these illustrative statements. That way you can inspire and lead by your sterling example.

I realize the people whose comments you’re calling “stupid” and a “parody” and “nonsense” aren’t soft-spoken Professors, but you probably at least want to pretend that your call for respect extends to everyone.

You may also want to review the vital and oft-overlooked distinction between civility and decency (many are the former without being the latter), as explained perfectly in this deliberately vulgar though quite insightful post.

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Glenn Greenwald 04.02.10 at 11:48 pm

RE THE LAST COMMENT: Everything should have blockquoted and attributed to Henry up to and including: “this is a remarkably stupid pair of comments.

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politicalfootball 04.02.10 at 11:58 pm

Orin Kerr says this:

Take the case of a default judgement. Imagine I sue you, saying you are a space alien who stole my soul and that I am entitled to $100. You decide not to show up to defend the charge, and the judge enters a judgment in my favor. Did the judge rule that you are a space alien who stole my soul? I would think the answer is no. Do you disagree?

I wanted to repeat this, I found it so stunning. Henry? You still out there saying it’s inappropriate to describe Kerr as a hack?

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Heur 04.03.10 at 12:05 am

Glenn,

If you read the judgment, you’ll note that the court had to make certain inferences concerning the precise nature of the electronic surveillance (whether the communications actually intercepted were wire communications within the United States, for example) based upon evidence offered by the plaintiffs. As far as I know-and I may be wrong-the court had no other information concerning the precise nature of the electronic surveillance conducted on the plaintiffs, much less information concerning the precise nature of the surveillance program. So it would be incorrect to describe this as a ruling on the surveillance program.

As far as Kerr’s post, his post assumes that without additional justification the electronic surveillance as alleged by the plaintiff would be illegal; the point is that for DOJ to make the justifying claims put forward under the Bush Administration, the DOJ would need to include additional factual allegations concerning the nature of the surveillance and the circumstances surrounding the authorization and use of the surveillance, which-and if I’m wrong, please say so-they did not do. Since those claims were not made, the court’s ruling does not bear upon the legality of the program if, alternatively, such claims were also considered.

The analogy is to the court ruling that A committed battery against Z purely on the basis of factual allegations and argument by Z, when A failed to include a number of factual allegations to make and claim some legal justification for violence inflicted against Z. Did Z succeed in his claim? Sure. Does the ruling tell us about the legality of A’s actions given the factual allegations and legal arguments not made by A? No.

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Henry 04.03.10 at 12:07 am

Piping in to this conversation briefly (and leaving Rich P. and elijah to enjoy their self-pleasurings up thread).

(1) The current argument seems to me to be not of any extraordinary weight in the grand scheme of things. Kerr raised what he described as a somewhat technical point. He made it clear that he thought it “quite right” that the plaintiffs prevailed, and that the Bush argument was weak. He has made eminently – and repeatedly – clear that _he himself believes this program to be illegal._ So if people want to show that he is in fact a monster of depravity dedicated to defending the Bush legacy at all costs, this is perhaps not the best illustration. And in any event – am I mistaken in surmising that the precedential value of any ruling on the illegality of the program (as opposed, obviously, to the substance of the judgement in re: the administration’s arguments that it couldn’t and shouldn’t be sued) roughly approximates to that of a bucket of lukewarm donkey-pee? The bragging rights seem – for better or worse (I presume worse and much worse, given that this seems to have been a matter of design on the part of the government to avoid any decision on the merits) to be rather exiguous.

(2) The charge of Excessive Rudeness to Judge Taylor Demonstrating Clear Political Bias and Foreordained Role as Concern Troll Hack can only stick if we hang the same placard around the neck of that notorious trampler of civil liberties, “Jack Balkin”:http://balkin.blogspot.com/2006/08/federal-court-strikes-down-nsa.html. Sample quotes -

Although the court reaches the right result– that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments. … very weak in its reasoning about the separation of powers. It does not even cite the recent Hamdan decision … also seems confused about what constitutes a violation of separation of powers. … I must say that the court’s analysis is not very strong. … the separation of powers argument it offers is not very good … mystified by the court’s refusal to draw on well publicized debates over the legality of the program … because the court’s opinion, quite frankly, has so many holes in it, it is also clear to me that the plaintiffs will have to relitigate the entire matter before the circuit court, and possibly the Supreme Court. The reasons that the court below has given are just not good enough.

If Orin’s relatively mild criticisms were ‘vicious disparagement,’ I’m really not quite sure how these should be characterized.

(3) Getting closer to the issue at hand, one of the things which provoked me to write this post was Greenwald’s suggestion that Kerr’s views on Al-Marri constituted an express defence of “probably the single most flagrant assault by the Bush administration on core constitutional guarantees: namely, the assertion that the President has the power to detain indefinitely anyone even inside the U.S. without charging them with a crime and without a trial. ” This struck me as a pretty problematic characterization. Greenwald’s “theory”:http://www.salon.com/news/opinion/glenn_greenwald/2008/11/09/kerr of why Kerr is endorsing this view goes as follows:

As both the Fourth Circuit’s majority and dissent in al Marri agreed, whatever detention powers the administration has over someone like al Marri applies exactly equally to U.S. citizens on U.S. soil. Thus, one who defends the administration’s claimed power to detain al Marri without charges and without a trial (as Kerr did) is, by definition, defending the administration’s power to treat U.S. citizens on U.S. soil in the same way.

Or, to put it a bit more abstractly the argument goes. Person _A_ supports position _x._ Persons _B, C_ and _D_, whom I claim to be authorities, say that _x_ entails _y_
_Therefore_ Person _A_ supports _y._ This is – to use a non-technical term – a stretch.

The problem with this style of argument is that except in open-and-shut cases of logical entailment, there is no reason to believe that person _A_ need agree with persons _B, C_ and _D_ in believing that _x_ entails _y._ And when it’s pretty clear from the post that person _A_ doesn’t believe that _x_ entails _y_ , you would think that this at least deserves some mention in passing.

And this is what happened here. Kerr makes clear throughout that the reason he believes the case was wrongly decided is because he thinks this _forestalls the US from taking action against foreign militants who fit right inside the traditional definition of enemy combatants._ In a later “post”:http://volokh.com/archives/archive_2008_11_09-2008_11_15.shtml#1226261980 (which, as best as I know, Greenwald has yet to respond to), he makes this abundantly clear.

To be specific, contrary to Greenwald’s claim, I reject the idea that the Executive branch has some sort of inherent Article II authority to detain citizens and legal residents inside the United States outside the criminal justice system. Greenwald imagines that I endorse that Article II position and then devotes half of his post to saying how it justifies his description of my views. But I have never taken that position, and it is not my view. Just to clarify, my view is that Ex Parte Milligan settled over a century ago that such powers to detain citizens don’t exist. Milligan is one of the great civil liberties decisions in constitutional law, and I think it is absolutely right. It is unclear to me why Greenwald thinks I am taking a different view, but he is wrong to imagine that is the case.

Following up on my posts on al Marri from last year, my view is that (a) the AUMF authorizes the detention of al Qaeda members if the appropriate due process protections are followed, and (b) the due process protections for non-citizen, non-legal residents in the U.S. are properly determined under the Hamdi balancing approach. This was the view of Judge Traxler in his en banc opinion, and I think Judge Traxler was right about this. The reasoning would not apply to U.S. citizens detained in the U.S., as they would be covered by Milligan rather than Hamdi, but it would apply to U.S. citizens in war zones abroad (the holding of the Supreme Court in Hamdi). I’m not really sure what the right level of due process protection is under Hamdi; the Hamdi balancing approach is pretty vague, and there’s a wide range of plausible ways to apply it ranging from pretty high due process protections to lesser protections. There doesn’t seem to be a clear answer to this based on current law, and I don’t have any easy answers to it, but something like Judge Traxler’s approach is at least a not-implausible outcome.

I think this makes it clear that Greenwald has mischaracterized Kerr’s position in some quite significant ways, and really should step up to the plate and correct some of the claims he has made.

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Hortense 04.03.10 at 12:11 am

IANAL either, and am glad LB added her clarifying comments. And, like most grown-ups, I can read the decision myself!

The court ruling specifically states that the plaintiffs submitted “sufficient non-classified evidence” to “establish the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance…” and goes on to state that the government failed to present any evidence that a wiretap warrant was obtained or that the “surveillance was otherwise lawful.”

It sounds like the judge is saying the plaintiffs proved they were subjected to unlawful surveillance.

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Henry 04.03.10 at 12:18 am

Glenn – as revealed preferences demonstrate, I have no particular problem with people returning rudeness with rudeness, as they consider appropriate. That isn’t the issue here – mischaracterization is. Nor is the dividing line academics versus non-academics, as suggested by my interactions e.g. with the execrable David Bernstein.

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grackle 04.03.10 at 12:38 am

My thanks to Henry, Lizardbreath, Bloix, Prof. Kerr, rea and Mr. Greenwald (i.e. the proprietor and the lawyers) for a fascinating conversation.

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Sebastian 04.03.10 at 2:01 am

“As for this—“The way you write is to assert that disagreeing with YOU is evil”—I just proved that to be false.”

Except you didn’t. You proved that you are willing to entertain certain possibilities on tactical moves–whether or not passing or rejecting a particular health care bill is worth it in view of whether or not it is likely that you will be able to get more of what you want by rejecting it. That isn’t at all the same thing as entertaining the idea that you might be wrong about some underlying issue and that heaven forbid someone else might be right.

You Citizens United comment is closer to what I’m talking about, but still not really it. You’re very much indoctrinated in the cult of the lawyer. Win/loss, good/evil, pound pound pound the table.

But convincing people in the legal arena isn’t the same as being convincing in a general sense.

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Orin Kerr 04.03.10 at 4:15 am

Glenn,

There seems to be some confusion. I am asking for the cites to legal decisions that say your point is correct. That way I can read the opinions for myself (as can all of the thread’s readers). Perhaps I just missed them in the thread — can you repost the citations to the cases?

Thanks,
Orin

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Orin Kerr 04.03.10 at 4:32 am

One more thought to add. Glenn writes:

I’m not an expert in criminal procedure, and wouldn’t purport to be – as a result, I wouldn’t run around attacking Judges’ decisions on such matters and didactically opining about it in the New York Times: certainly not without spending a huge amount of time first informing myself.

And yet, my major criticism of Judge Taylor’s decision was that the Fourth Amendment analysis was complete dreck. Indeed, to this day, I think it’s the worst Fourth Amendment analysis I have ever read in any written legal decision. I hope Greenwald would agree with me that I have some ability to discern the quality of the analysis in a Fourth Amendment opinion — and, at least based on his own view of where his expertise lies, that he does not. (Although it’s interesting that, at least initially, Glenn seemed to agree with me about the quality of the opinion., writing,: “This is not the most scholarly opinion ever. It has argumentative holes in it in several important places.”)

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ScentOfViolets 04.03.10 at 4:56 am

There seems to be some confusion. I am asking for the cites to legal decisions that say your point is correct. That way I can read the opinions for myself (as can all of the thread’s readers). Perhaps I just missed them in the thread—can you repost the citations to the cases?

So let me guess – assuming Glenn even bothers to make the effort, you’ll claim to “not be convinced.” Iow, if what you’re really saying is “If Glenn can’t make me say I’m wrong I win.”

Are you actively soliciting the contempt of people, rather then merely their disagreement? I was prepared to put you in the wrong, but not malignantly so category despite the claim that you were an “apologist”. But your behaviour now causes me to reevaluate that opinion.

The smarmy snark didn’t help your case either – nor Henry’s.

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Ceri B. 04.03.10 at 10:37 am

I started off this thread thinking that while Glenn was likely right on the facts of the matter, his tone was more intense than really warranted. I’ve become convinced that his judgment was right on that, too – this has been appalling, and very much an exercise in fiddling around while torturers ply their trade.

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kid bitzer 04.03.10 at 11:53 am

agreed, ceri b.

i came into this without a dog in the fight–admire gg for much of his work, but also aware that he can go apeshit on people out of proportion to the merits of the case. didn’t know who orin kerr was, though the name sounded familiar, and it seemed quite possible that he was another innocuous victim of a greenwald rage-o-gram.

but the more i have read here, the more i have seen that kerr is actually *worse* than gg’s characterization. he has been serially dishonest, and then dishonest about his dishonesty, and all of it while sporting the mild-mannered bow-tie of moderate prose to cover his crimes. the most despicably self-serving mischaracterizations of others’s positions, evasions of the truth, shifting of his position, and superficial smarm. he is a lost soul.

henry, you do not strike me as a lost soul. but if you do not see that your colleague is a dishonest hack and an apologist in the worst sense after this, after you have watched all this, then i think your soul is in peril. ignore the bow-tie, henry. ignore the old school tie. look at his behavior on this thread.

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Henry 04.03.10 at 12:16 pm

oh dear oh dear. oh dear. Ceri b , kid bitzer – _this is not about fucking torture_ Can I say that more clearly? _No-one here_ most certainly not Orin Kerr is trying to justify torture. Orin Kerr has _never_ justified torture – and has described torture as torture. And if you don’t get that, there is clearly something very strange happening with the reading process here which you really need to think about carefully.

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LizardBreath 04.03.10 at 1:25 pm

Henry? Kid Bitzer didn’t use the word torture, and Ceri B didn’t say Kerr was directly justifying torture. You may think that treating all of the Bush Administration aggressive legal positioning in the service of ‘national security’ as a single thing that includes justifying torture is wrong, but it’s not incoherent or indicative of a failure to understand this conversation.

I’m not certain at all what Kerr is thinking. But he’s posting things that aren’t true (and really aren’t a matter of misunderstanding or fine technical distinctions). When his errors are pointed out, he changes the subject. And he’s repeatedly mischaracterizing what Greenwald is saying, and then snottily demanding cites that back up his nonsensical mischaracterization.

Goodness only knows why he’s doing this, given that he now says that there were no interesting consequences to the point he now says that he wanted to make. (See Kerr’s 146.) I can’t read his mind. But clever people don’t usually say things that are straightforwardly, simply, wrong, and resist correction, unless they’ve got some reason. And it looks to me like a dishonest attempt to make all of these legal issues look like hard questions on which reasonable people can differ.

Now, it’s not an a priori truth that no reasonable people can disagree with me about the Bush Administration’s legal positions — there are lots of things I’m not an expert on, and some of my beliefs are probably incorrect. But dishonestly blowing smoke in an attempt to create doubt on specific issues where none actually exists (such as, to stay on the specifics of the thread, whether Judge Walker ruled on the unlawfulness of the surveillance program before him), is still very bad behavior, and it’s bad behavior that is going to make people angry.

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Glenn Greenwald 04.03.10 at 1:28 pm

I am asking for the cites to legal decisions that say your point is correct.

Before I go compiling a bunch of basic legal research for you, I’d like you to be very specific about what you’re asking, so that I don’t go find it only for you to claim that it’s not what you were seeking.

Are you asking for legal citations that when a court grants a Motion for Summary Judgment, it is necessarily ruling that there are valid arguments and evidence for each element of the claim — i.e., here, that Judge Walker necessarily ruled that the surveillance to which the plaintiffs was subjected illegal because of the arguments and evidence the plaintiffs submitted?

You could probably walk into a 1L class at GWU and find that — it’s so basic as to be painful that a Rule 56 Motion for Summary Judgment requires the moving party to present a prima facie case with evidence and arguments as to each element of the claim.

But if that’s really what you need in order to admit you’re wrong (as you promised to do), say so and I’ll get it. If you’re looking for something else, say what it is specifically.

I don’t want to play a shell game with you where I keep running around giving you things that prove you’re wrong only for you to claim that it wasn’t what you wanted.

I actually want to pursue the promise you made here for you to admit publicly that you’re wrong, because they way you’re wrong here is so illustrative of what you do so frequently when using your status as Law Professor to publicly discredit judges and others who criticize Bush policies as extremist and illegal: i.e., you hide behind a veneer of cautious, reasonable legal reasoning that is so often 100% false – just like you did here.

So be specific: what legal citations are you asking for?

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Glenn Greenwald 04.03.10 at 1:34 pm

HENRY – I’m content to allow the reactions you prompted in your own readers (and they’re not mine, since I haven’t linked here) to speak to (a) what you actually wrote and (b) the merits of it.

I’ll just address the point about the Al-Marri case. I didn’t merely cite some random people off the street for the proposition that one who supports what was done to Al Marri necessarily supports doing the same thing to U.S. citizens, because they’re legally indistinguishable. I cited all of the appellate judges who decided the case — both in the majority and in dissent — who agreed that this was so. But no matter: what was done to Al Marri was one of the most heinous and radical acts of the Bush administration — throwing a legal resident into a cage for years with no charges of any kind — and Orin Kerr explicitly supported that, and disparaged the Court for placing limits on that presidential abuse.

You (like Bush followers) can claim that this is merely a fascinating, intellectual, good faith dispute among nice gentlemen to discuss in mutually respectful tones. I don’t see it that way. That is a dangerous and tyrannical power which Orin Kerr expressly defended (albeit in a pleasant tone and with a fingers-to-the-chin contemplative pose).

A lot of people accused the Bush administration of dangerous extremism and “shredding the Constitution” and the like not because they really meant it, but because it was a way to undermine a Republican president. I’m not among that group. When I said those things about what Bush was doing, I actually meant it, and so those who provided the cover and excuses for it — such as Orin Kerr (not always, but often) — are not people I’m going to pretend are nice and moderate, no matter how collegial and professorial their tone is.

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Rich Puchalsky 04.03.10 at 1:37 pm

Kerr will clearly never admit that Greenwald is right about this limited point. So Henry prefers to dig in to a 2008-era blog exchange between Kerr and Greenwald, knowing that issues that haven’t been agreed on between them by now will never be agreed on, and that the thread can peter out into he said/he said.

But this is not purely a matter between Greenwald and Kerr. It is susceptible to independent checking. Specifically, in the testimony to the Senate that Kerr made in the Bush era — and that I quoted above — Kerr minimizes the effect of the Patriot Act, and uses a selectively edited quote to imply greater agreement about his point than is actually the case. Therefore, he is a sometimes apologist on the issues that Greenwald claimed he was one on, by any reasonable standard.

As usual, Henry’s fixation on what he calls mischaracterization is nothing of the kind.

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kid bitzer 04.03.10 at 1:54 pm

thanks, lb.

henry, for the purposes of assessing kerr’s behavior *on this thread* (as i said in my #187), it does not matter whether the underlying issue is torture or how to split the cost of lunch. kerr has behaved dishonestly and disgracefully, right here in your living room.

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politicalfootball 04.03.10 at 2:10 pm

Henry, not only am I not a lawyer, but you’ve more-than-met my request for detail on Greenwald’s alleged offenses – so much so that I haven’t found the time to go through point-by-point, and can’t offer a substantive response.

But look, there’s a basic factual matter at stake here, and either Greenwald or Kerr has got it wrong. Moreover, there’s an interpretive matter here,too – is Kerr acting in bad faith? (I’m not sure Greenwald is accusing him of doing so – but I am). Once I read this, below,from Marc’s link in 15, why do I really need to read anything else from Kerr:

As I understand it, DOJ’s response to the motion for summary judgment filed in the case was to assert the state secrets privilege, which basically put the case on hold until the state secrets privilege issues were worked out. In other words, DOJ said, “we’re not going to even respond to the merits of the issues in this suit because it shouldn’t go forward under the state secrets privilege, and that has to be resolved first.” After resolving the state secrets privilege issues mostly against the government, however, Judge Taylor didn’t then move on to discovery, or let the government brief the merits. Instead, Judge Taylor just held that the govermment lost on all of the merits — before any discovery occurred, indeed, before any of those legal issues were even briefed by the government. (Glenn Greenwald suggests that this is correct because the DOJ’s failure to address the merits should be seen as a tacit admission that the ACLU’s position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.)

Now again, I am not a lawyer, but in these times if you want to be informed on public issues, you have to have a sense of how the law works, annd I think I do. By my reckoning, many of Bush’s worst offenses were offenses against the rule of law.

This thing from Kerr, who styles himself a legal expert, is just bullshit, no? What am I missing?

Maybe I didn’t make myself clear in 276, but the language I quoted there is remarkable to me for its bad faith. Greenwald wants to let Kerr off the hook for being ignorant of civil law, but that excuse doesn’t cut it. An analagous matter in criminal law would be even more obviously ridiculous. Even people who confess to crimes won’t be convicted unless independent evidence of guilt can be demonstrated.

Kerr is not merely a Bush apologist, but he’s a bullshitter as well. Why should I read him further?

He’s a polite fellow, though. So he’s got that going for him.

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Ceri B. 04.03.10 at 3:25 pm

Kid Bitzer covered one side of the point, so I’ll cover the other: it matters a lot to me as a citizen that the untrammeled surveillance power was the goal of people who like to torture and looked for excuses to inflict harm on more folks. Expanded power in the hands of the executive and reduced interference from outside sources is always worth scrutinizing, but more so because it was those particular evil shitheads doing it. (And now the Obama administration’s active refusal to roll it back or punish the perpetrators of crimes calls for extra skepticism about their actions, too.)

People demonstrably committed to evil shitheadedness deserve extra scrutiny even when their next step seems innocuous, not that this one did.

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ScentOfViolets 04.03.10 at 4:08 pm

He’s a polite fellow, though. So he’s got that going for him.

I would disagree and say that from what I have seen he is most emphatically not a polite fellow. I’ll give you that he doesn’t use four letter words or call people names, but in my book, that’s not nearly enough to be considered polite. When I get into a dispute with a fellow mathematician (which is frequently), one of the rules is that after a certain level of evidence is offered to back up a point the other party concedes that this is so and the discussion moves on[1]. It does not go all meta, and it does not have one party getting to decide that the other “didn’t say his words right”(actually, in mathematics that’s not technically true given the nature of the biz, but it’s certainly true in spirit) Presumably the same is true for lawyers, or at least I hope it is when the argument is over points of law and the parties are not in a courtroom.

In blatant contravention of the accords that one party should acknowledge that the weight of evidence is against him, Kerr is blatantly pulling the old “If you can’t make me say I’m wrong I win” shuck, and that to my mind makes him an extremely impolite fellow.

[1]
M1: Any number when multiplied by zero is zero. It’s not just a useful assumption.

M2: Prove it.

M1: Very well. Let “n” be any number. Then n*0=n*(0+0), since by assumption 0 added to any number does not change that number. So by the distributive property, n*0=n*0+n*0. Since again by assumption every number has an additive inverse, in this case, -n*0, we can add it to both sides to get -n*0+n*0=-n*0+n*0+n*0. But then we have that 0=0+n*0, that is n*0=0. Since n was any number, the proof is finished.

M2: Works for me.

Note that M2 doesn’t get smarmy and ask for proofs of the utilized assumptions, or claim that M1 was wrong because if you restrict yourself to the natural numbers, there are no nontrivial additive inverses, i.e., he didn’t try to claim that this is not a proof because M1 “didn’t say his words right”. Which is exactly what Kerr is trying to pull here.

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piglet 04.03.10 at 4:18 pm

I’m sorry but the “space alien” argument makes Orin Kerr look ignorant of judicial matters. It is patently false. for a default judgment to be granted, the plaintiff has to make a legal argument and offer proof. If the defendant doesn’t respond, the judge can rule based on the legal argument and the proof provided by the plaintiff alone (and in the “space alien” case would probably still dismiss). It is true that the judge might have ruled differently if defendant had offered counterproof but the fact that they didn’t doesn’t mean the judge hasn’t decided the merits of the case. Kerr is simply making a fool of himself.

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Orin Kerr 04.03.10 at 4:23 pm

Glenn,

The disagreement between us is about whether a decision granting summary judgment for a civil plaintiff means that the court has considered and rejected the possible defenses to liability that the defendant declined to raise. You say the answer is “yes”; my understanding has always been “no.” You claim to be an expert in civil litigation, so I just want to know the cases you are relying on for your conclusion that the answer is “yes.”

Just to be extra clear, it is obviously the case that if a court grants a motion for summary judgment by a plaintiff, that the court has found that there are undisputed facts and legal theories supporting liability. As you say, that’s first-week of civil procedure. But that’s not the question here. The question here is whether Judge Walker’s decision granting summary judgment to the plaintiffs means that he also considered and rejected the possible defenses that could be made to liability — and specifically, the Bush Administration’s arguments that FISA is unconstitutional as applied here and that the AUMF authorizes the surveillance — given that the Obama Administration declined to argue these theories.

As you know, and assume you will acknowledge, Judge Walker never discusses these arguments or even mentions them in his opinion. Thus, the question is whether (a) he considered and rejected them secretly without saying anything about them or (b) whether he simply didn’t consider them because they weren’t raised by the defendant. My view is (b); your view is (a); and I just want the legal authority you’re relying on to conclude that he must have done (a).

Thanks,
Orin

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politicalfootball 04.03.10 at 4:23 pm

There’s a strong desire among decent people to have a “loyal opposition” to engage with – someone on the other side of an issue with whom we can engage in honest intellectual discussion.

In the United States in 2010, the issues are so stark that people with a conciliatory nature are willing to reach more than they should to find an opponent to engage with, and will defend a well-spoken law professor as being an appropriate person to engage with on matters of law. Having a guy like Greenwald (or Emerson, come to think of it) peeing in the punch bowl is unpleasant and seems unnecessary and extreme.

On U.S. political matters, given the nature of the issues that divide the two parties, nearly the entirety of the “loyal opposition” to my own views exists within the Democratic Party. The modern Republican Party has nothing additional to contribute.

Some folks will read that as an admission of my extremism.

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piglet 04.03.10 at 4:23 pm

Kerr: “I don’t agree with the Bush Administration’s argument, but their argument is that the surveillance was lawful because of arguments never made.”

Is that their “argument”? Do you call that an “argument”? If I go to court saying that I have an “argument”showing that I am entitled to X but I chose not to make that “argument”, and the judge rules against me, would I be entitled to say that the substance of the case was never decided because the judge didn’t get to hear my “argument”?

Heck let’s drop this. It’s just too ridiculous. Let’s move on to something that we can have a legitimate debate about.

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bianca steele 04.03.10 at 4:29 pm

@194
It certainly sounds like bs to this non-expert. I’m reluctant, however, for my own reasons, to criticize expert-written, perhaps jargon-laden prose just because the language is not readable by many people; I do not think experts need to make it their goal for all their explanations and decisions to be understandable by everybody. I could probably critique phrase-by-phrase the paragraph based on my own understanding, which might be useful to somebody, but I wouldn’t expect Kerr (or anyone in a similar position) to answer that kind of critique (unless there was some extra reason they should).

The consideration LB brought up, however, about misleading naive readers, is something I do worry about.

@195, also 191
The idea that issues like torture and untrammeled surveillance and so on come as a unit, one big package that can’t be separated, seems wrong to me. Obama did not show that he and his administration were committed to that package, and to accuse them of having principled reasons for P when in fact they may have had principled reasons for pursuing not-P slowly, to me seems counterproductive. In particular, to me it seems counterproductive: to say Democrats are unprincipled but Republicans are principled; that there is no reason to choose between a Democrat and a Republican if your goal is to get results in restoring civil liberties; that people ought to be very, very angry at Obama and his administration; and that you are on the side of those who will vote for whatever party makes them feel better about themselves, regardless of policy or results, because they are going to have moral criticisms about the people in power whoever they turn out to be.

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LizardBreath 04.03.10 at 4:33 pm

The disagreement between us is about whether a decision granting summary judgment for a civil plaintiff means that the court has considered and rejected the possible defenses to liability that the defendant declined to raise. You say the answer is “yes”; my understanding has always been “no.” You claim to be an expert in civil litigation, so I just want to know the cases you are relying on for your conclusion that the answer is “yes.”

This is not what your original post said, and it’s not particularly close to what your original post said.

If your original post had made a version of this argument: that the DOJ’s failure to defend the legality of the program meant that Judge Walker was not compelled to consider the strongest possible arguments for the legality of that program before he ruled that it was unlawful, I wouldn’t have called you dishonest above, and I doubt Greenwald would have had the reaction he did either.

Do you yet understand and agree that Judge Walker did rule that the surveillance was unlawful?

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politicalfootball 04.03.10 at 4:35 pm

The disagreement between us is about whether a decision granting summary judgment for a civil plaintiff means that the court has considered and rejected the possible defenses to liability that the defendant declined to raise. You say the answer is “yes”; my understanding has always been “no.”

This is such a wild misrepresentation of Greenwald (and LB) that it speaks for itself, right?

CT’s moderation is a bit aggressive for my tastes, but I believe I’ve seen posters step in and admonish commenters for lesser offenses than this.

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LFC 04.03.10 at 4:40 pm

Re tone/civility: in my view, the problem with Henry’s dismissing my initial comment in this thread as a parody was not so much that his response was uncivil as that it showed his unwillingness to address the questions I was trying to raise (admittedly, those questions did not have to do with the main topic of the post or the thread). At some point I’d be interested in hearing him expand or clarify his views on the blogosphere as a “collective community,” assuming, as I did, that this reference in the post was more than just a throwaway remark and does indicate something about how he views the blogosphere.
On the main issues of the thread, to the extent that I’ve been able to follow them without reading the underlying material, I side with the view that Kerr was just wrong when he described the court’s holding. He should have said forthrightly: “I made a mistake. What I meant to say was such-and-such.” He hasn’t said that, at least not here.

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Glenn Greenwald 04.03.10 at 4:54 pm

ORIN:

The disagreement between us is about whether a decision granting summary judgment for a civil plaintiff means that the court has considered and rejected the possible defenses to liability that the defendant declined to raise. You say the answer is “yes”; my understanding has always been “no.” You claim to be an expert in civil litigation, so I just want to know the cases you are relying on for your conclusion that the answer is “yes.”

Wow -this is the most dishonest thing I’ve ever seen you write, and I’m so glad you did it at Henry’s blog as he’s defending you as an honest, reasonable man who argues in good faith and deserves respect.

I MOST CERTAINLY DID NOT SAY: “a decision granting summary judgment for a civil plaintiff means that the court has considered and rejected the possible defenses to liability that the defendant declined to raise.”

You have to know that I didn’t say that. I don’t think you’re dumb, so the only alternative is dishonesty.

I EXPLICITLY TOLD YOU that the Plaintiff was required to make legal arguments as to why the surveillance was illegal, and here, they told the Court what the DOJ’s defenses had been in its January, 2006 White Paper (Article II and AUMF), and then proceeded to brief at length why those arguments did not justify FISA violations.

So the Court had before it the very arguments the DOJ made. The plaintiffs briefed them at length. I gave you the EXACT CITES with the link in the plaintiffs’ brief where they did so.

I then cited where the Court said that the surveillance was illegal.

So – as usual – you’ve completely distorted what I said in a way that literate person can see. Others have already explained this to you.

I did NOT say that the Court necessarily anticipates every defense, including ones defendants haven’t raised. That suggestion is beyond absurd.

I DID say — and any civil litigator knows this — that to win Summary Judgment, the plainitffs have to had demonstrated FACTUAL AND LEGAL ENTITELMENT to win.

Here they did so by arguing to the Court that the DOJ’s legal defenses were wrong. The Court NECESSARILY granted those arguments in fining the surveillance legal.

You just are too proud and eager to deny that the Bush DOJ was found to have engaged in crimes to admit this. There’s no way that you don’t see it.

I’ll just ask you: Did the Bush administration commit crimes in how it eavesdropped on Americans without warrants? Did it commit crimes in how it authorized torture?

Just to be extra clear, it is obviously the case that if a court grants a motion for summary judgment by a plaintiff, that the court has found that there are undisputed facts and legal theories supporting liability. As you say, that’s first-week of civil procedure. But that’s not the question here. The question here is whether Judge Walker’s decision granting summary judgment to the plaintiffs means that he also considered and rejected the possible defenses that could be made to liability—and specifically, the Bush Administration’s arguments that FISA is unconstitutional as applied here and that the AUMF authorizes the surveillance—given that the Obama Administration declined to argue these theories.

As you know, and assume you will acknowledge, Judge Walker never discusses these arguments or even mentions them in his opinion. Thus, the question is whether (a) he considered and rejected them secretly without saying anything about them or (b) whether he simply didn’t consider them because they weren’t raised by the defendant. My view is (b); your view is (a); and I just want the legal authority you’re relying on to conclude that he must have done (a).

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Glenn Greenwald 04.03.10 at 4:55 pm

The last two paragraphs in my last comment should have been deleted – those were ones Orin wrote that I cut and paste to respond and then left dangling at the end of my comment.

This place needs a Preview function.

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Heur 04.03.10 at 5:37 pm

Well… three things.

First, Glenn and Lizard Breath are simply wrong about the ruling. Glenn seems to think that

It’s impossible for (a) the warrantless eavesdropping on these plaintiffs to be illegal (as the Court found) AND (b) the Bush warrantless eavesdropping program to be legal. (a) took place pursuant to (b).

But this is simply ignorant of the ruling itself. The court had no information concerning the surveillance program beyond that (1), most international communications are on a wire, and (2) that electronic surveillance was conducted without a warrant in some cases. The court also had no information concerning the electronic surveillance actually conducted in this case, beyond an inference that it occurred, on certain int’l communications, based on a sequence of public announcements by the government concerning the plaintiffs.

The above facts and inferences compose (leaving aside issues concerning the states secrets privilege and other matters) entirely the facts upon which the court ruled. For the court to even be able to reach the justifications the Bush Administration put forward, the DOJ would need to have submitted its own factual allegations concerning the nature of the surveillance conducted in this case, the circumstances and nature of the authorization of that surveillance, and then connect those factual allegations to legal arguments. This was never done.

The problem with extending this ruling beyond the narrow factual confines of the MSJ (motion for summary judgment) then is that the factual allegations and argument which compose the substance of the Bush Administration’s arguments were simply never raised.

So to trumpet this ruling as a repudiation of the Bush Administration’s arguments is simply wrong. That is Kerr’s point. His post agrees, of course, that the court found the surveillance alleged in this case, without any facts or arguments put forth by the DOJ, in violation of FISA.

Second, I don’t read Glenn’s column or articles, but in this comment thread I’ve noticed a tendency on his part to repeatedly compare interlocutors to the Bush Administration, to claim Whether I like Kerr or not—and whether I agree with his politics—is totally besides the point; it doesn’t enter my calculus. and then to turn around and say things like That’s what [Kerr] does – it’s his function: he provides the reasonable, calm, civil expert face to justify extremist and lawless policies. I read those comments, and then I glance again at Henry’s original post, and I find myself wondering whether Glenn is actually mindful of what he is doing.

Third, I find it astounding that anyone would seriously question whether an individual who has clerked for a Court of Appeals and then for the Supreme Court is aware of how a summary judgment works. I find it even more astounding that someone who worked for a year at Wachtell, and should therefore presumably know better, would raise such a question. This kind of rhetoric is in keeping with the problems raised by Henry in his post, and by multiple commentators above. If anything, I think Kerr has been too polite in responding.

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grackle 04.03.10 at 5:39 pm

IANAL either but I am at least bemused by the charges of dishonesty at Kerr’s statements. Much of the discussion seems to me to be at cross purposes.

(1) In his original Volokh post, Kerr states unequivocally, “It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak.” He then goes on to note that the arguments of the Bush administration, quoted from the Times, “that the president’s wartime powers enabled him to override the FISA statute,” were not offered by the Obama defense team and, in his view, had not been decided upon. This is interesting because it hovers in the background as a possible tool for some future litigation – as, arguably weak as Greewald says it is, it is still untested and therefore available when, perhaps some future administration may judge that the times favor such a position more than these times do. I take it that this was Kerr’s point and I do not see that he has deviated from it in the ensuing conversation. I don’t see where this point has been even acknowledged. It might be that I’ve missed something in the technical language but seems that he has been disparaged for a position he has not taken and explicitely admitted in his original post. Thus, I’m bewildered by the hostility toward him. In what sense has he been dishonest. I don’t see it.

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LizardBreath 04.03.10 at 5:54 pm

His post agrees, of course, that the court found the surveillance alleged in this case, without any facts or arguments put forth by the DOJ, in violation of FISA.

No, it doesn’t. Kerr’s post says that: As a result, the decision doesn’t rule that the program was unlawful.

Regardless of how impressive Kerr’s credentials are (and they’re vastly more impressive than any of mine, certainly), this is a false statement, and one that, as you suggest, could not be made thoughtfully and honestly by anyone with a first-year law student’s command of civil procedure. It could certainly be an inadvertent slip, but if you make a slip like that, you’re supposed to correct it and replace it with a truthful statement of whatever it is you’re arguing.

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Henry 04.03.10 at 5:59 pm

Glenn at #191 – come off it. You clearly misrepresented Orin’s position. If I made an argument that

(a) Glenn Greenwald is in favor of the decision in _Citizens United_
(b) lots of authorities on free speech law whom we should find compelling (starting with Larry Lessig, and going on from there) believed that this was going to transform US political speech into a wholly owned subsidiary of the US Chamber of Commerce.

ergo:

(c ) Glenn Greenwald is a _wholehearted defender_ of sleazy business interests who want to dominate political speech.

I suspect you would object – and strenuously. But this is _exactly the same kind of bogus argument_ that you are using to depict Kerr as a defender of an extremist position. There are _lots_ of things that Kerr has argued for that I don’t agree with. But he is _not_ – contrary to your repeated suggestions on your blog – a John Yoo or an Irving Kristol. Instead, he’s someone who very clearly and repeatedly has criticized the Bush administration, has held explicitly on multiple occasions that the program under discussion here is, as best as he can tell, illegal. I find it unfortunate – to say the least – that you still can’t bring yourself to actually address the very specific elaboration of his position on detention that I have quoted above, which makes it quite clear that he does _not_ hold the extreme position that you have repeatedly said that he does. I challenge you to do so specifically – not to jump off into broad generalities about how the Bush doctrine on this or that is appalling (which I personally, mostly take as read) – but on how Kerr’s _specific position_, taking into account his arguments on Milligan etc – represent apologism for extremism. I’m disappointed that you ducked this above and am going to keep pushing on this.

I do think that there is a group of people who could perhaps make a _prima facie_ case (but no more than that) that Orin Kerr is a concern troll. But it is not the leftleaning people on this blog. It’s his fellow conservatives. Take for example this “post”:http://volokh.com/2010/04/02/a-better-question/ from the day before yesterday, where he challenges his fellow-bloggers, who have been spinning out … idiosyncratic … claims about the unconstitutionality of HCA to say whether under their theories Social Security, the FTC, Medicare, the SEC etc are constitutional. I can see how conservatives and radical could find this highly, highly annoying – since it pricks their intellectual bubble in a highly inconvenient fashion (David Kopel tries to wave the objection away, not especially convincingly). I used to think that conservatives like Kerr ought to consider not hanging out with people like Kopel, because they lent them credibility. But this “piece”:http://www.juliansanchez.com/2010/03/26/frum-cocktail-parties-and-the-threat-of-doubt/ by Julian Sanchez on the dangers of epistemic closure among conservatives really made me change my mind. In Sanchez’ words “there is nothing more potentially fatal to the momentum of an insurgency fueled by anger than a conversation.” More gadflies like Kerr, please.

I really can’t believe that we are still debating the non-issue of the ruling. Everyone here (including Kerr) believes that the program _should_ have been found illegal on the merits, if the merits were ever reached. As far as I can see, everyone agrees that the relevant standard here is that the plaintiffs presented a _prima facie_ case that was left unopposed. I thought academics were adept at tapdancing on the heads of needles, but litigators are clearly more so (and, annoyingly, are usually better paid for it to boot, although since I am married to one, I can’t really complain on that front either). What I would like and would find substantively useful, would be an explanation of _why_ the government failed to argue on the merits. Is this because (as I am guessing) that they figured that the precedent would be less damaging? Or is there some other rationale? This – in contrast to the argument that has been raging for the last sixty comments or so – seems plausibly interesting and important.

General point – blockquotes do not work as they should in our comments for some reason. You need to put blockquote tags _around each paragraph_ – this should work (and does work 95% of the time).

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Heur 04.03.10 at 6:01 pm

I EXPLICITLY TOLD YOU that the Plaintiff was required to make legal arguments as to why the surveillance was illegal, and here, they told the Court what the DOJ’s defenses had been in its January, 2006 White Paper (Article II and AUMF), and then proceeded to brief at length why those arguments did not justify FISA violations.

Glenn, the court dealt with these two documents in a single sentence on page 22: “These new items [referring to the White Paper as one of the new items] do not bear specifically upon the defendants’ alleged surveillance of Al-Haramain.” I understand, given your clear passion on this issue, why you would want the court’s ruling to stand for a repudiation of the arguments put forth in the White Paper. But the legal arguments in the White Paper require, at a minimum, various factual allegations to be made concerning the program, the circumstances of its justification, and so forth. The DOJ never made such factual allegations. In consequence, the court could not possibly rule upon arguments put forward in the White Paper. Indeed, in the absence of such factual allegations by the DOJ, the White Paper simply has no specific bearing on the surveillance alleged in this case.

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jdkbrown 04.03.10 at 6:06 pm

Henry,

In this very thread Kerr has quite blatantly misrepresented both Greenwald and Lizard Breath; are you willing to call him out on it quite so vehemently as you’re going after Greenwald?

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Henry 04.03.10 at 6:22 pm

jdkbrown – since Kerr directly apologized to Lizardbreath, and since I am not seeing any very significant misrepresentations of Greenwald (perhaps Greenwald can point to same if needs be), no. And _especially not_ since Kerr is not suggesting that Greenwald is a Bill Kristol type hack. But let it be noted that the logic of your suggestion can be turned back in your direction too …

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Orin Kerr 04.03.10 at 6:28 pm

Glenn,

My assessment of your honesty is the same as your assessment of mine. We both realize that. But the good part about legal discussions is that we’re talking about cases, not relying on the individual honesty of the participants (or perceptions about them). So let’s stick to the legal question and see if we can move forward.

You seem to be arguing that because the plaintiffs affirmatively argued the inapplicability of the Bush Administration’s arguments before Judge Walker, Judge Walker must have considered those arguments and ruled on them even though he never actually mentioned them and the defendants did not themselves raise them. What I’m looking for is the legal authority to support that position — that a plaintiff can argue a defense that the defendant doesn’t raise, and that the judge’s ruling on the motion implicitly is a ruling on the defense even if the defendant never raised it. If you could provide the authority you are relying on.

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Rich Puchalsky 04.03.10 at 7:12 pm

“But this is exactly the same kind of bogus argument that you are using to depict Kerr as a defender of an extremist position. “

I think it’s instructive for the people who’ve given up on Henry already to look at the hash that he makes of Greenwald’s argument, because it’s a particularly revealing hash. Henry, despite his protestations that he can learn from the people across an intellectual divide, can’t even understand what Greenwald is saying, and as a result can only produce a strange straw man of his imagination.

Let’s take Greenwald’s statement at face value for a moment. What are the proper attributes of some whose function is to “[provide] the reasonable, calm, civil expert face to justify extremist and lawless policies”? Well, they certainly wouldn’t be wearing an I’d Rather Be Waterboarding T-shirt.

In fact, they would be against torture — of course! And they’d say that waterboarding was torture. They would conform in every way to those pietistic statements that if not said mark someone as a winger. But — of course — they would strangely enough provide reasonable, calm, civil legal analysis that just so happens to go against the actual cases in which governmental power around surveillance (because that was what this was about) was trying to be restrained. And that legal analysis would be flatly incorrect. And whenever people tried to explain to him that it was incorrect, he’d strangely enough just get confused, over and over, about simple things, until everyone got bored and gave up.

Is he doing this on purpose, or just out of ignorance? Well, it makes no difference to people on the outside. The effect is the same in either case.

So Henry keeps bringing up his pieties. He’s not a torture supporter! He’s not as bas as those other right-wing guys! And all it really shows is Henry’s own intellectual limitations. He’s left with nothing. He can’t argue that the problem is that people were rude, because he’s rude. He can’t argue that Kerr was mis-described as a Bush apologist, because that doesn’t simply depend on Greenwald’s word — it depends on the actual, documented history of what Kerr has written, which can be evaluated by anyone, whether or not Greenwald and Kerr argued about something two years ago. And he can’t even understand the actual issues at stake, or Greenwald’s argument, so his whole pretense of being able to learn from those of differing views is shot too.

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Anderson 04.03.10 at 7:13 pm

Kerr’s post says that: As a result, the decision doesn’t rule that the program was unlawful.

As I wrote above, I think Prof. Kerr simply misspoke here (and I wish he would address whether or not he misspoke, as to that single sentence).

One problem with the attack-dog quality of GG’s posts is that they make it more difficult for people to admit such mistakes, getting everyone’s dander up instead. It seems obvious by now that Prof. Kerr did *not* mean to say that the program was not found unlawful, but *did* mean to say that the radical Bushie arguments — Article II trumps FISA, etc. — were not addressed in the opinion, for the very good reason that the feds were not raising them.

Prof. Kerr’s original post subjected the NYT article to a rather closer reading than I think journalistic prose can bear on average, but hey, I thought that kind of thing was what blogs are for.

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jdw 04.03.10 at 7:15 pm

Henry, you originally proposed a thread on how Glenn is unfair to your colleague Kerr, obviously anticipating an intemperate, ad hominem attack from Glenn that would have perhaps illustrated your point about him. That didn’t happen, and instead the discussion turned on whether or not Kerr was wrong in saying the recent judgment didn’t amount to a judgment that the warrantless wiretapping program was illegal. By about comment 135 it had been demonstrated that Kerr was wrong, and that the judgment did mean that the program was illegal. That was really two birds with one stone, because Kerr was both shown to be wrong, and refused to admit he was wrong, shifting his positions, and finally raising specious demands about whether the judge had considered every possible defense the government could have raised. Rather than assisting your colleague, you had caused him to be presented in a very unfavorable light, in effect lending support to what Glenn had been saying.

That’s when the bad language started, with your “donkey piss” and the “masturbating critics” and the “really stupid” and the rest of it. I’ll say no more about that, except that that didn’t derail the discussion either.

I think Greenwald, and LB, and a number of others, deserve a lot of credit for that.

Now, Henry, having proposed this thread, and in it illustrated both your and Kerr’s MO, you are waving off the “non-issue of the judgment” and proposing that we all put our heads together and enter into a different discussion you would consider “substantively useful”. A discussion with whom, Henry? With you (“It’s not about fucking this, it’s about fucking that”, and with Kerr (“Ah, I see there has been a slight misunderstanding”)?

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ScentOfViolets 04.03.10 at 7:30 pm

Nobody can get either Henry or Kerr to make any significant admission, that’s pretty obvious. What wasn’t obvious until jdw pointed it out was that one of the more abusive posters here was – Henry. Now, scrolling back, it sort of leaps out at you. Yeah, I know, “he said, she said”. But does anyone doubt that was where this was going to end up?

I guess that’s why I prefer math and science.

219

Steve LaBonne 04.03.10 at 7:36 pm

Oh dear. Somebody really should acquaint Henry with the First Rule of Holes.

220

Henry 04.03.10 at 7:37 pm

jdw – I’m sorry, but this is demonstrably factually incorrect. I’ll happily plead guilty to the donkey pee (which I _will_ point out though for the record was obviously aimed at no-one in particular), but the “self-pleasuring” was in fact a reference to elijah’s suggestion at #86 that all I wanted to do was engage in same. When people are rude to me – especially (when they’re repeat offenders), I do tend to be rude right back to them. When people say what I believe to be self-evidently stupid things – and when they have a past history of saying stupid things – I say so. And if you care to defend the comment in question as non-stupid (it made a factually false claim about a commenter having been banned, and another factually false claim that I have an issue with partisanship; something which I have repeatedly defended) – be my guest. Perhaps I shouldn’t allow myself to be provoked – and perhaps it only aggravates the trolls – but there you go. I don’t think that you can plausibly say (with one possible exception) that I was rude to anyone who didn’t start out by being quite rude to me – so your suggestion that this was a deliberate strategy on my part to derail a thread that was going in inconvenient directions is, I think (if you don’t object to me saying so – and I am criticizing the suggestion rather than you) a silly one.

And when people _keep bringing up torture_ despite the fact (which nobody apart from Puchalsky in his confusion has disputed) that Kerr has never said anything even faintly problematic about torture, it gets frustrating around the third or fourth time that I have to point this out, and I sometimes resort to unparliamentary language. It also makes me suspect that some people at least (not all of the critics here I hasten to add, by any means) are responding with a kind of atavistic reflex that anyone who has been pinned, however unfairly, with the ‘Bush apologist’ donkey-tail _has_ to necessarily be a torture-loving, innocent-imprisoning monster. This pains me. I like to think that my side of the political argument has more people who are genuinely _liberal_ in the sense that they are committed to a certain set of values regarding debate, establishment of truth etc than the other side. And _I don’t like it_ when people respond in what seem to me to be obviously irrational ways (e.g. as here, by repeatedly and without any _evidence whatsoever_ suggesting that this is a debate about torture_. This seems to me to be A Problem. That it does not so seem to many people in this discussion seems to me to be an Even Bigger Problem.

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jdkbrown 04.03.10 at 7:42 pm

Henry, I’ll point you Lizard Breath’s comment at 159 for evidence of Kerr’s misrepresentation of LB’s and Greenwald’s position. I don’t anywhere see Kerr retract that characterization; indeed he repeats it at 198 (and politicalfootball calls him on it at 203).

And the logic of my comment cannot, in fact, be turned back on me. As far as I can tell from this thread, Greenwald hasn’t misrepresented Kerr; on what grounds, then, would I condemn him for doing so? Like several of the commenters above, I came to this with no stake–I don’t read either Kerr or Greenwald regularly, and I didn’t yet have an opinion about either one.

Here is what I took from the thread: Kerr claimed, explicitly, that the Bush surveillance program hadn’t been found illegal; Greenwald (and LB and Bloix) point out that this is straightforwardly false; rinse repeat a few times; Kerr then claims that what he really meant was that the court hadn’t addressed the arguments of Bush administration; Greenwald/LB/Bloix agree with that, but point out that (i) as a matter of procedure, the court wasn’t obliged to, and (ii) this doesn’t change the fact that the court found the program illegal; Kerr continues to mischaracterize the ruling of the court, and then further mischaracterizes Greenwald/LB/Bloix as saying that the court did consider the arguments of the Bush administration. Now Kerr, I’ve been assured, really thinks that the surveillance program is illegal; why, then, does he persist in making the false claim that the court didn’t declare it illegal? Here’s one plausible explanation: he’s an apologist, looking to defend the Bush administration even when he disagrees with it.

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Henry 04.03.10 at 7:54 pm

The one person who I do owe an apology to is LFC – my dismissal of his argument was ill-tempered. On blogospheric affiliations – I think it is a little of both. I feel some loyalties to people who I have been interacting and engaging with for over seven years, some of whom I consider friends although I have only met them once or never. I do also feel a much more diffuse loyalty to bloggers as a tribe of people, much in the same way as I feel a loyalty to Irish people. Some of them I dislike intensely – but there’s a broad feeling of hazy affiliation to a collective, and I’m more inclined to respond favorably, try to help out etc someone who is a blogger within the very general community of people who blog about politics and intelelctual debate than someone who is not.

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Rich Puchalsky 04.03.10 at 7:58 pm

“And when people keep bringing up torture despite the fact (which nobody apart from Puchalsky in his confusion has disputed) that Kerr has never said anything even faintly problematic about torture”

Y can’t Henry read? Where Henry seems to have gotten the idea that I said this from is comment 24. I invite him to look at the sentence again: it refers to what Greenwald is primarily known for working on (in sarcastic shorthand, yes), and the only thing it says about Kerr is that he is supposed to be respectable.

Henry devotes his answer to the charge of rudeness primarily to me, actually. Poor, unjustly put-upon Henry — how rude it was of me to refer, in my first comment, to his “self-flattery”, thus echoing the same phrase he had used in his original post to describe and caricature the opinions of those he disagreed with. And how false were those statements that I made which Henry still can’t understand.

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politicalfootball 04.03.10 at 7:58 pm

One problem with the attack-dog quality of GG’s posts is that they make it more difficult for people to admit such mistakes, getting everyone’s dander up instead.

I think this brings us back to Henry’s original point – that there’s a class of people with whom we disagree that we ought to treat gently. And in principal, one can certainly agree with Henry – just as Henry would agree that there is a class of people (exemplified by Thiessen) who ought to be considered beyond the pale.

Greenwald, however, is so useful precisely because he refuses to do this. You’re a college professor, government official, legal scholar, Obama supporter, etc.? You’re a conservative, a Bush supporter, an evangelical? You’re on my side? You’re not? So what?

Greenwald has a laser-focus on the quality of peoples’ arguments. To call him “partisan” completely drains the word of meaning. Because in his writing he focuses on matters of deep import, Greenwald can write with a great deal of urgency. This is a good thing (at least, if you agree with Greenwald about the urgency of his subject matter.)

Blaming Greenwald for Kerr’s bad behavior is absurd. Timidity in confronting bullshitters is one reason the U.S. is plagued by so much bullshit nowadays.

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jeer9 04.03.10 at 8:04 pm

Having followed this thread for the past few days (with great interest and even more amusement), I think it’s fairly clear that Prof. Kerr is arguing in bad faith – which doesn’t make him an evil Bushie but certainly doesn’t redound to his personal credit either. The key thing to remember is that nobody is ever wrong when great pride is at stake. The two professors just keep quibbling and asking for clarifications or change the subject until the whole matter can be categorized as a misunderstanding, a failed attempt at broaching a civil conversation with someone outside one’s political realm. Really, what is this country coming to!

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Heur 04.03.10 at 8:13 pm

I think Glenn’s argument that, to find the electronic surveillance alleged to be illegal, the court would have had to consider and reject the arguments made in the White Paper, has been laid to rest.

In the matter of Kerr’s post, there is still this: Lizard Breath writes: No, it doesn’t. Kerr’s post says that: As a result, the decision doesn’t rule that the program was unlawful. Regardless of how impressive Kerr’s credentials are (and they’re vastly more impressive than any of mine, certainly), this is a false statement […]

As Anderson pointed out, you have to take that single statement in context with the rest of his post. He clarifies what he means: yes the court found the surveillance, as alleged, was illegal, but no the court was not ruling on the legality of the program as a whole given the various justifications put forward by the Bush Administration.

If you agree with Glenn, that somehow the court had to consider the arguments in the White Paper, to reach the result, then I can see an argument that Kerr is wrong. But I’d bet that you don’t. Even if you do, I think you can see why Kerr’s point is one that can be reasonably believed.

On the issue of tone… I really don’t have a dog in this fight, but at some point in Glenn’s stream of (paraphrasing here) “his function is to provide a civil face for dangerous and lawless policies,” “he’s not qualified to talk about this stuff,” “he doesn’t know what summary judgment is,” etc., I found it impossible to disagree with Henry’s overall point, notwithstanding Rich’s interesting conspiracy-theory.

I wonder whether there might not be two approaches to the purpose of a public discussion in this context. Henry’s approach emphasizes a focus on ideas, with a minimum of the use of moral indignation, or ad hominem, to quash a discussion. Glenn’s approach emphasizes the setting of boundaries to what ideas can and cannot be discussed; some are acceptable for discussion, and others, not being acceptable, should be silenced not only through criticism of the ideas themselves, but also through the use of moral indignation and ad hominem.

Glenn’s approach better fits public politics, but Henry’s approach better fits intellectual discussion.

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politicalfootball 04.03.10 at 8:25 pm

Rich’s interesting conspiracy-theory

We’re all struggling to account for Kerr’s nonsensical claims. Your explanation seems to be that Kerr didn’t really mean it, regardless of his repetition and refusal to retract. Henry’s, as best as I can reckon, is that Kerr has limited his nonsensical claims to non-material matters.

Rich’s analysis makes a lot of sense to me.

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ScentOfViolets 04.03.10 at 8:26 pm

Scrolling back through this thread, I don’t see , what did Henry call it: “by repeatedly and without any evidence whatsoever suggesting that this is a debate about torture_.” He’s of course free to go through and do a control-F as I just did and point out where this has occurred repeatedly. But what I see is mostly people saying things like there are some things that are not shades of gray, like:

Call me a “binary” thinker if you want, but I do think there are bright lines—torture, indefinite detention, illegal surveillance on American citizens—that one can’t cross and still be within the realm of the reasonable.

If this is what Henry means when he says that people “keep bringing up torture”, well, I fail to see the significance. Hrrrmm . . . let me do a quick search. Yep. From an older thread (me speaking):

And I have told you – what? – three or four or five times now that when I say ‘moderate’, I mean what the majority of the population thinks on a given issue. Not what you keep attributing to me. Like this:

Apparently in that thread as well as this one, Henry persists in insisting that people have said things they simply have not. And – apparently – making it an affaire d’honneur as well. A pointless one at that.

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Rich Puchalsky 04.03.10 at 8:32 pm

My conspiracy-theory? I did write this:

“Is he doing this on purpose, or just out of ignorance? Well, it makes no difference to people on the outside. The effect is the same in either case.”

Greenwald originally referred to Kerr’s “function”. Someone can easily function as a certain element of an intellectual ecosystem, so to speak, without conspiring to do so.

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ScentOfViolets 04.03.10 at 8:43 pm

Greenwald originally referred to Kerr’s “function”. Someone can easily function as a certain element of an intellectual ecosystem, so to speak, without conspiring to do so.

Indeed. “Useful idiots” and so forth and suchlike. To go back to another defunct conversation, just because one uses words that can imply an intentional stance doesn’t mean that they necessarily do. “The function of the three-eighths gripley is to prevent the elliptical cam from catching on the flange rebate.”

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Anderson 04.03.10 at 9:16 pm

but no the court was not ruling on the legality of the program as a whole given the various justifications put forward by the Bush Administration.

I don’t think I’d go quite that far; those justifications weren’t at issue because they weren’t argued, but I don’t think that gets us to “the court was not ruling on the legality of the program as a whole.” Whether the court has done so is an interesting question, as we were discussing early in the thread.

Arguing whether the program is “really legal” because of certain unmade arguments is a bit like arguing that the Patriots really won that game where Belichick didn’t punt on 4th.

But then — to distinguish myself from several commenters above — I could be wrong.

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Anderson 04.03.10 at 9:19 pm

Someone can easily function as a certain element of an intellectual ecosystem, so to speak, without conspiring to do so.

Objectively anti-Bolshevik,” mutatis mutandis.

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Rich Puchalsky 04.03.10 at 9:35 pm

I see. So speculating about someone’s motives is ad hom and wrong, but describing what they’re actually doing and its effects is wrong too.

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anon/portly 04.03.10 at 9:47 pm

jdkbrown in 221:

Here is what I took from the thread: Kerr claimed, explicitly, that the Bush surveillance program hadn’t been found illegal;

I think this is misleading. Kerr claimed explicitly that “the decision doesn’t rule that the program was unlawful.” But he also said “[i]t’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance.”

Kerr then claims that what he really meant was that the court hadn’t addressed the arguments of Bush administration

But it’s not as if Kerr’s original meaning was obscure; e.g. Scott Horton (from Anderson’s 84): “[Kerr]’s right that the Justice Department, maneuvering deftly to limit damage in an obviously hostile judicial environment, used the state secrets privilege and other tactics to avoid any definitive ruling on the Bush-era program.”

[Kerr] further mischaracterizes Greenwald/LB/Bloix as saying that the court did consider the arguments of the Bush administration.

I don’t think this is accurate. I thought Greenwald’s point is that the plaintiffs specifically addressed the arguments of the Bush administration and that the court (or judge) therefore has addressed those claims in this ruling.

[Greenwald in 160]: Here, the plaintiffs made extensive legal arguments about why the NSA program was illegal. They specifically refuted the DOJ’s position that Article II and the AUMF justified warrantless eavesdropping. …. The Court, on pp 2-3 of its decision, explained that it was granting Summary Judgment because the Plaintiffs convinced the Court that they were entitled to it….

Since all of the other umpires are picking on Kerr, I think Kerr has been better behaved in this thread than Lizardbreath or Greenberg. Notice the difference between Scott Horton’s take (84) and Lizardbreath in 134 and 144. Was Kerr’s meaning really that painful to divine? And Greenberg in 160 and 205 has seemingly raised a fundamental point that contradicts Kerr, but has kind of left hanging any sort of definitive take on whether or not Kerr is ultimately right or wrong. Would the court have ruled in the plaintiff’s favor if the plaintiffs hadn’t addressed those arguments? Could the court have ruled in the plaintiff’s favor if they hadn’t addressed those arguments? Since the judge didn’t mention those arguments in the ruling, does it matter (for future judges looking back at this case) that they plaintiffs raised those arguments? Or is Kerr right that in some legally meaningful sense those arguments have not been tested and so therefore the program is not “unlawful” in some legally meaningful sense that it would be if those arguments had been tested? (I haven’t the slightest idea, but I think these questions are interesting).

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Martin Bento 04.03.10 at 10:12 pm

On the departure of John Emerson,

I discussed this with John, and he said that he had not been banned, exactly. He had been enjoined to stop hijacking threads and left by mutual agreement. The thread that evidently triggered this was the one on The Wages of Populism: Political Death. I feel a bit guilty about this as I had encouraged Emerson to post in that thread, thinking Populism on topic for a thread so-titled and knowing he had something to say on the matter. Chris apparently preferred a narrower discussion of the particular political event he brought up, but many of us were more interested in the general discussion. Both discussions proceeded in parallel for a while, but the thread developed into a discussion of Populism in which Chris himself, as well as Emerson, I, and many others participated. I guess Emerson was deemed to have crossed some line in that discussion, or it was some kind of last straw. FWIW, I also believe that discussion is what inspired Chris’ infamous griping post about commenters.

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Martin Bento 04.03.10 at 10:41 pm

Yes, I suppose the last remaining issue is whether the fact that the Plaintiff brought up the Bush arguments, the DOJ did not, and the Judge did not explicitly address them in his ruling means that the ruling applies to them. If the Judge agreed with the Bush arguments, would he not have had to dismiss regardless of whether the DOJ argued them, because the plaintiff’s argument is invalid on its face, regardless of the counter-arguments? That seems to be Glenn’s position. What if the Judge thought he did not have enough information to make that determination? Would a judge be able to grant a summary judgment that rested on legal arguments that, in the judge’s mind, were in doubt? IANAL, but my guess would be that the answer is no, especially as summary judgments are supposed to be judgments that stand even if all uncertain matters are assumed to go against the conclusion of the judgment, correct? In other words, did not the judge, to grant a summary judgment, either 1) have to believe the Bush arguments invalid, or 2) believe them debatable, but believe, even if Bush arguments were assumed to be correct, the plaintiff’s position held? I don’t see how 2 could be a viable position. If the AUMF might possibly prevail over FISA, how could the plaintiff have a case? That question would have to be resolved for the case to be resolved, no? Otherwise, the plaintiffs would be obtaining a judgment for possibly permitted activity. And, if that is the case, resolution of the case implies resolution of the Bush arguments, regardless of whether the Judge explicitly calls them out, doesn’t it? Like I said, I have no expertise here, but that’s how it looks to me.

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Henry 04.04.10 at 12:40 am

jdkbrown – that isn’t the kind of misrepresentation I was talking about. As heur points out in 226, lizardbreath “misrepresents” Kerr’s argument in turn. Now lizardbreath has been commenting here for years, and has never once to my knowledge made a bad faith argument, so I am quite sure she is not doing so here either. But when I’m talking about misrepresentation, I’m talking about allegations with implications regarding underlying motives (the one place where I did think Kerr did this, as I’ve already noted, he apologized quickly for afterwards).

As for your “plausible explanation” (which really doesn’t strike me as very plausible, since there isn’t any real discussion of _how_ this purported mistruth helps the Bush administration), here’s mine – which seems to me to be rather more plausible. It is clear that the administration’s legal team did not make the arguments on substantive merits that would have been expected. This is, on the face of it, extremely odd – competent lawyers do not often typically forgo possible defences without extremely good reason.

However, as per Kerr (as explicated by Scott Horton, who I note for the record is a completely implausible Bush administration apologist), there is a story here. The Obama administration preferred not to raise the merits, because a judgment that didn’t touch on the merits would be less embarrassing, either because it would not find the program unlawful (Kerr), or it would find it unlawful in the very limited sense that plaintiffs had been granted relief for illegal actions taken under it, and that their case on the merits had _prima facie_ plausibility and had not been challenged by the defendants (as best as I understand him, Greenwald). The scanty difference between those two positions is, as best as I can tell what we have seen argued over for the last hundred odd comments (to what extent the difference is collapsed by the facts of the case presented by Heur 207 and Heur 211, and as best as I can see, undisputed by anyone, I leave to the actual lawyers).

And this is what seems to me happened. Kerr saw that the _NYT_ piece missed _a key part of the story_ – the machinations of the Obama administration lawyers to limit the future consequences of the judgment – and said as much in a blogpost. Greenwald chose to interpret this post as Greenwald chose to interpret it. And the merry-go-round started again.

And back to it again – I would like to see you – or anyone else who has taken Greenwald’s side in this – comment on whether you think that the specific style of ‘claim that someone is a defender of x, even when they specifically have gone out of their way to say that they don’t defend x, because they favor something that someone else leads to x’ style of argument is a fair or good one, especially when it is conducted without _any mention_ of the arguments that the person has advanced to explain their own position. I myself think that this is a bogus and highly problematic way to conduct debate, and I still hope that Greenwald can bring himself to respond (perhaps, since it is the weekend, he is doing other things and will come back to the keyboard soon). In the interim – what do you think?

Other points.

Rich – if you say that you did not mean to suggest that Kerr was a torture apologist by bringing in the mention of torture, I am happy to accept your correction and withdraw the suggestion.

Rich at various points and ScentofViolets at 230 – you do realise where the recent revival in terms like “useful idiots”:http://www.google.com/search?q=%22useful+idiots%22+%22glenn+reynolds%22&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a and “objectively pro-xxxx”:http://www.google.com/search?hl=en&client=firefox-a&hs=qRt&rls=org.mozilla%3Aen-US%3Aofficial&q=%22objectively+pro-saddam%22+%22glenn+reynolds%22&aq=f&aqi=&aql=&oq=&gs_rfai= came from, do you? There are some strong reasons from recent history why I (and many other people) consider this style of argument to be intellectually pernicious (Greenwald’s stuff about ‘serving the function of’ or whatever it was is identifiably from the same intellectual family). There is also a set of very good reasons for why functional arguments are widely regarded as rotten explanations of how societies (and social roles work). Perhaps ScentofViolets is OK using the term ‘useful idiot’ despite its opprobrious usage during the Iraq war – but it was problematic then and is problematic now.

For those who want to read further the whole saga which ScentofViolets is upset about, they can “find it here”:http://crookedtimber.org/2009/02/26/netroots-lefties/.

Martin Bento – if you are in touch with Emerson on this, please tell him that he is welcome to participate in my threads (if he is imo threadjacking in any instance, I would prefer to tell him so at the time, rather than to have him not participating for fear of accusation of same). Relations with other CT people I can’t speak to. Contrary to elijah’s suggestion way upthread neither I, nor anyone else on CT is the ‘editor’ (a couple of us do more of the background work of keeping it up and running, but that is it. Instead we run more or less like the anarchist collective in Monty Python and the Quest for the Holy Grail. Sometimes we take collective decisions – such as to ban someone – but these involve (sometimes extensive0 prior discussion, and are communicated unambiguously when they do occur. Emerson is not banned – and as I say, is personally welcome in my threads if he wants to return.

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Rich Puchalsky 04.04.10 at 1:16 am

Comment #237, and Henry is just starting to understand Greenwald’s actual argument. Well, it’s a start.

I didn’t use the phrase “useful idiot”. I didn’t use “objectively pro-(whatever).” But there has to be some way of describing someone with a history of doing something. You didn’t like it when Greenwald called Kerr a “sometimes Bush apologist”. You don’t like functional talk. I’m sure you wouldn’t like speculation about motives.

But the fact remains that Kerr has an actual history of defending actual Bush politics about surveillance. I’m going to keep mentioning that testimony to the Senate until someone acknowledges that there is more going on than a dispute about a current court case. Kerr hardly makes it a secret than he has certain opinions, of course. Having read Kerr’s Senate testimony, and since it is phrased to be understood by a non-lawyer, I find it apologetic, even deceptive if you look at what was done to the quote. But I have little hope that anyone is going to address it at this point. Kerr has run out the clock.

Now, when someone like Kerr has a history, over years, of intervening in politics in a particular way, someone like Greenwald has to have some way of referring to this history. Perhaps at this point I should stop and ask what the permissible phrasing is. What combination of words will not bring sneers about “objectively pro-whatever” and other things that people here didn’t actually write?

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ScentOfViolets 04.04.10 at 1:45 am

Rich at various points and ScentofViolets at 230 – you do realise where the recent revival in terms like useful idiots and objectively pro-xxxx= came from, do you? There are some strong reasons from recent history why I (and many other people) consider this style of argument to be intellectually pernicious (Greenwald’s stuff about ‘serving the function of’ or whatever it was is identifiably from the same intellectual family).

Sigh. Yes, sigh: this is lurching over into the ludicrous. The original claim was that some sort of conspiracy was being alleged. It was then pointed out that no, no conspiracy was implied, nor does the language imply this, hence the example “useful idiots” and the Pratchett reference to illustrate the use of the term “function” without implying intent.

For Henry to now complain that this sort of language is the mark of ill breeding after it was used to show that charge of implied conspiracy was flat-out wrong is just so much weasel dissembling. I’ll go on the record this time as saying that Henry simply can’t bear to admit that the accusation was wrong, and that’s why he’s going on about “inappropriate” language. That’s my impression of his interior life.

For those who want to read further the whole saga which ScentofViolets is upset about, they can find it here.

Again, note the lack of civility. Henry, it occurs to me you have no standing to make this sort of complaint about others. No, I’m not “upset”. I am demonstrating that in my personal experience, you have a history of misrepresenting and misinterpreting what people say even after they have corrected you multiple times. Since this is a charge I do not like to make lightly, I included a cite; I’m not going to lay this sort of accusation on someone and ask people to accept it merely on my say so.

Come on, Henry, you’re better than this. Or at least, I hope you are.

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aaron 04.04.10 at 1:48 am

Rich at various points and ScentofViolets at 230 – you do realise where the recent revival in terms like useful idiots and objectively pro-xxxx= came from, do you? There are some strong reasons from recent history why I (and many other people) consider this style of argument to be intellectually pernicious

This is such a curious* argument. Putting aside the easily verifiable fact that Rich and ScentofViolets didn’t use those terms in the way you’re saying they did, are you really saying that something Glenn Beck does completely ruins an entire “style” or “family” of argument? Glenn Beck did it, therefore it’s bad?

If a student of mine wrote “There is also a set of very good reasons for why functional arguments are widely regarded as rotten explanations of how societies (and social roles work)” on a paper, I would point out to them that there are also people who hold the opposite opinion, which puts us at square one. Of course it’s a complicated issue, and of course it’s problematic. But do you think you’re the only one who’s aware of that? If the best you can come up with is “some people think this is a very bad kind of argument for VERY GOOD REASONS. Also Glenn Beck!” then guess what? You’ve just failed to convince anyone that didn’t already agree with you.

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mew 04.04.10 at 1:50 am

Henry – You’re suggesting that the phrases “useful idiots” and “objectively pro-xxxx” are inherently flawed because Glenn Reynolds and a host of other war-mongering wingnuts frequently use them? That’s absurd. And as Rich points out, nobody here has even used the latter phrase.

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Martin Bento 04.04.10 at 1:57 am

As for the notion that the DOJ may have passed on making the Bush admin arguments, so as to prevent the ruling from reaching those arguments, perhaps there is another interpretation. Perhaps the Obama administration is really fighting for a very expansive interpretation of state secrets law and doesn’t want the case muddied by the particulars of the argument over FISA. It looks like it’s going to go to the Supreme Court arguing that the executive branch can say “state secrets” and any matter is removed from Court jurisdiction. Period. That argument is going to touch on a lot of things besides FISA. Though they haven’t done well with that one so far, I have a very low opinion of the Court, and any changes to it now will come from Obama, so I think they may well win there, which would be very grim news for American democracy.

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Anderson 04.04.10 at 2:07 am

It looks like it’s going to go to the Supreme Court arguing that the executive branch can say “state secrets” and any matter is removed from Court jurisdiction. Period.

And what’s really sad is, I think we can count 4 votes for that position already.

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LFC 04.04.10 at 2:52 am

To Henry @222 — Apology accepted (and I appreciate your response).

245

thiagomoliva 04.04.10 at 3:09 am

Wooow! This is the flame war to end all the flame wars!

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Don't Quote Me on That 04.04.10 at 4:39 am

I’m another reader with no strong prior opinion of Henry, GG, or Kerr, and the thread has left me with the following impressions of the principles:

Henry: wrong on the merits; not as smart or as clever as he thinks he is; not in control of his inner 9-year-old; dislikable

GG: correct on the merits; a tad excitable

Kerr: oily, smug, dishonest; destined for greatness

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Hektor Bim 04.04.10 at 4:50 am

Have to agree with Don’t Quote Me on That.

It seems like it would be quite prudent to never read another thing written by Henry again.

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Orin Kerr 04.04.10 at 4:55 am

A few quick thoughts:

1) I’m still hoping to get the legal citations Glenn Greenwald has in mind to back up his claims. If Glenn does not want to support his argument with legal citations, or does not want to stay engaged in the discussion now that we have focused on the specific legal issues, then I’d be happy if anyone else could do so.

2) Over at my home blog, the Volokh Conspiracy, comments claiming that I am a political hack usually take the position that I am a reflexive Bush-hater; that I always criticize conservatives and never liberals; and that I am biased in favor of liberal positions. In light of that, it’s refreshing to have a comment thread with several arguing that I am a hack in exactly the opposite direction.

3) I’m still struggling to understand what my alleged motive would be in trying to misrepresent Judge Walker’s decision. I think that if DOJ had defended the legality of the program, Judge Walker should have rejected DOJ’s arguments. Why would I be biased in favor of positions I reject? Oh well.

4) Greenwald has called me a “sometimes Bush-apologist,” and made clear that in his view, “apologist” simply means one who defends a particular side and that it does not carry any negative connotation. If that means that when a question came up about the Bush Administration, I sometimes agreed with the Bush Administration and sometimes disagreed with the Bush Administration, then that is quite right. I’ve tried to approach these issues by just focusing on the merits, as best as I am able to see them, going wherever the arguments seem to take me. Sometimes that took me to defending the Bush Administration (often the case with the Patriot Act, which I think was terribly misunderstood), and sometimes that took me to opposing the Bush Administration (such as with its Article II theories and anything touched by John Yoo).

It’s the great thing about being a tenured academic. I don’t have to please a particular audience, or sell books, or care about traffic to my blog, so I can make whatever argument I think is correct without caring about which “side” it benefits. I realize that this approach will alternatively anger some on the hard left and the hard right, depending on which position I happen to be taking, but I would much rather just make arguments that I think are correct than care which “side” is pleased or angered by it.

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Anderson 04.04.10 at 5:05 am

anything touched by John Yoo

Indeed.

250

Pinko Punko 04.04.10 at 6:00 am

I look askance at the “I’m attacked from both the right and the left…” gambit. This is like pitting reviewer 2 against reviewer 3, and even Hitler knows about reviewer 3.

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poco 04.04.10 at 6:05 am

When I say the earth moves around the sun, the earthers attack me, but when I say the sun moves around the earth, the sunners attack me. And yet all I have said is that for half the year the earth moves around the sun and for the other half the sun moves around the earth and I have angered both of them.

Fortunately, I don’t have to please either the earthers or the sunners, so I can continue in this vein for as long as I live.

Did I get your position correctly, Professor Kerr?

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Orin Kerr 04.04.10 at 6:10 am

Pinko,

The point is not about being criticized generally: Rather, it is about being accused of dishonesty to serve an alleged political agenda. It’s easy to take an incorrect position that draws criticism from both left and right. On the other hand, it’s relatively hard to be a dishonest hack for the political left and the political right at the same time.

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Rich Puchalsky 04.04.10 at 12:55 pm

“On the other hand, it’s relatively hard to be a dishonest hack for the political left and the political right at the same time.”

The accusation is not that you’re a “dishonest hack”, except in Henry’s mind; the accusation is that you keep supporting fewer restrictions on governmental surveillance, and that when you do so, you keep getting things wrong in such a way as to harm efforts to restrict that surveillance.

Let’s forget Henry’s “Kerr is not history’s greatest monster, so why are you treating him like one?” nonsense for a moment. What did Greenwald actually say? I repeat Greenwald’s comment from #39 above:
“He may do so in soft tones and with professorial collegiality, but as I documented in the comment above, Orin Kerr has repeatedly defended many of those radical and criminal policies, including imprisoning people on U.S. soil with no charges of any kind. I don’t consider that a good faith dispute to sit around and, with soft civility, chat about. Those are dangerous, lawless and extremist policies which he justifies. Some differences of opinion – most – are within the realm of the reasonable; those aren’t.”

And with regard to comments on Judge Taylor. same comment:
“Kerr was 100% wrong. He was ignorant about the ruling. He failed to understand what he says now—that because the DOJ didn’t raise defenses, the Court should not analyze them. In the midst of ugly right-wing attacks on Judge Taylor for ruling against the Bush administration (with many accusing her of being dumb and an affirmative action hire), Kerr’s providing the “expert” ammunition by deriding her opinion as nothing but some “general ruminations” fueled the flames. That’s what he does – it’s his function: he provides the reasonable, calm, civil expert face to justify extremist and lawless policies.”

As the current positions being taken by Obama’s DOJ show, both elements of the “left” and “right” may favor relatively unrestricted governmental surveillance, and it’s quite possible that an apologist for such might be criticized by both people on the left and the right.

But, of course, in general you’re on the right. The fact that there is a lunatic right that doesn’t bother with fake civility doesn’t change that.

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Glenn Greenwald 04.04.10 at 1:36 pm

HENRY:

And back to it again – I would like to see you – or anyone else who has taken Greenwald’s side in this – comment on whether you think that the specific style of ‘claim that someone is a defender of x, even when they specifically have gone out of their way to say that they don’t defend x, because they favor something that someone else leads to x’ style of argument is a fair or good one, especially when it is conducted without any mention of the arguments that the person has advanced to explain their own position.

We are, in my view, at the point in this discussion where most people are so dug in and prevented by pride (if nothing else) from changing their views that further engagement is not really worth the time and energy.

That said, I will try to explain this point one more time to you:

If, to take your example, all 9 Supreme Court Justices in Citizens United — both in the majority and the dissent — agreed that the majority’s holding would necessarily lead to X, because there is no way to legally distinguish what the majority decided from X, then it would absolutely be appropriate for someone to say that by endorsing the Citizens United ruling, I was endorsing X.

But that point is irrelevant to the discussion of Kerr’s extremism. Look at what he did defend: the Bush administration’s treatment of Al Marri. They took a legal resident in the U.S., studying at the University of Illinois and living with his wife and five children, and imprisoned him for years with no charges of any kind. They originally charged him with crimes, which he vehemently denied, and then right before his trial was about to start, they canceled it, declared him an “enemy combatant,” and gave him the Jose Padilla treatment. Here are the facts and background of what was done and of that judicial ruling: here and here.

Orin Kerr defends that. He attacked the Judges who imposed some very minimal restrictions on the President’s power to do that (by ruling that someone in that position gets some minimal due process to prove their innocence).

Do you think what the Bush administration did to Ali al-Marri is reasonable and moderate, and that someone who defends that is the same? I don’t. I think it’s extremist and tyrannical — most progressives claimed to believe the same thing when it was Bush doing it — and whether or not Kerr’s defense of what was done to al-Marri would justify the same thing being done to U.S. citizens (as all judges, on both sides, of that decision said it would), what was done to al-Marri was heinous enough.

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Glenn Greenwald 04.04.10 at 1:50 pm

ORIN:

I’m still hoping to get the legal citations Glenn Greenwald has in mind to back up his claims. If Glenn does not want to support his argument with legal citations, or does not want to stay engaged in the discussion now that we have focused on the specific legal issues, then I’d be happy if anyone else could do so.

As numerous people have pointed out to you, the “legal citations” you requested are based on a total distortion of what’s being argued, and seek support for a proposition so obviously ludicrous — that when a Court grants Summary Judgment, it necessarily has considered and rejected every single possible argument that the non-moving party might have raised but didn’t — that it, by itself, proves your lack of good faith.

The Court explicitly said that the surveillance was illegal. As I’ve pointed you to numerous times now (and which you refuse to acknowledge), the plaintiffs, in their moving papers, raised and extensively rebutted the DOJ’s arguments as to why the NSA program was legal (i.e., they raised and refuted the Article II and AUMF argument). The Court was required to find under Rule 56 — and did explicitly find — that there were sufficient arguments submitted to justify the conclusion that the surveillance was illegal.

Thus, your scolding of the NYT for reporting exactly what the Court said (that the surveillance was illegal), and your claim that Judge Walker made no such ruling, is totally false.

Over at my home blog, the Volokh Conspiracy, comments claiming that I am a political hack usually take the position that I am a reflexive Bush-hater; that I always criticize conservatives and never liberals; and that I am biased in favor of liberal positions. In light of that, it’s refreshing to have a comment thread with several arguing that I am a hack in exactly the opposite direction.

Reporters love to claim that as long as they can show that they are criticized by both the Left and the Right, it means they must be doing something right. That’s a primitive and idiotic thought process when they use it, and it’s the same when others do. The fact that the largely right-wing readership at Volokh and liberal bloggers often accuse you of hackery proves nothing.

I’m frequently accused of being a partisan Obama-booster by right-wing blogs and a blind Obama-hater by many Democratic blogs. I don’t think that proves anything about whether I’m right, though by your “standards,” it seems relevant.

I’m still struggling to understand what my alleged motive would be in trying to misrepresent Judge Walker’s decision. I think that if DOJ had defended the legality of the program, Judge Walker should have rejected DOJ’s arguments. Why would I be biased in favor of positions I reject? Oh well.

Because this is how you defend Bush radicalism. You simultaneously hold yourself out as a Bush critic (I think their defenses are “weak”) while doing everything possible to protect them from any real accountability (that Judge who ruled against Bush is incompetent and dumb, and this Judge who did the same thing didn’t REALLY rule against him).

So I’ll ask you again:

Do you believe the Bush administration committed crimes in how it eavesdropped on Americans without warrants?

Do you believe the Bush administration committed crimes in how it used “enhanced interrogation tactics” (i.e., torture) on helpless detainees?

Why can’t you answer those?

It’s the great thing about being a tenured academic. I don’t have to please a particular audience, or sell books, or care about traffic to my blog, so I can make whatever argument I think is correct without caring about which “side” it benefits. I realize that this approach will alternatively anger some on the hard left and the hard right, depending on which position I happen to be taking, but I would much rather just make arguments that I think are correct than care which “side” is pleased or angered by it.

This is the same thing you always say when you want to smugly claim superiority (I’m a tenured academician and therefore more objective than those who aren’t, because I don’t have to sell books).

I don’t answer to anyone in what I write. There simply isn’t anyone who (a) focused on the abuses of the Bush administration and (b) has criticized the Obama administration more frequently or harshly than I have for adopting many of those same abuses, thus earning the anger of many who once supported what I was doing (prior to 1/20/09).

I don’t think you’re an apologist for Bush radicalism because it produces personal benefits for you. I think you do it because you actually believe in the rightness of most of what they did. You seem to think that’s better; I think it’s worse.

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Rich Puchalsky 04.04.10 at 2:03 pm

Greenwald is right that people are dug in — what I referred to earlier as Kerr “running out the clock.” Once a thread gets to a certain length, the chance of getting any comment other than “Woo! This is the biggest flame war evar!” goes way down.

But I want to add to a previous point, for anyone still reading. Let’s say that within politics, which is after all a communal realm in which it might be thought that consequences matter more than individual virtue, you take a more or less consequentialist view of morality. Who then should be more condemned? The dishonest hack, who is fairly immediately apparent as such and who discredits himself? Or the person who provides the reasonable, calm, civil expert face to justify extremist and lawless policies?

Henry started this by posting “I would frankly far prefer to live in a world where at least some of the other guys thought like Orin Kerr than one where they thought like, say, Marc Thiessen.” Well, actually, I would prefer to live in a world where the government does not indefinitely detain people and illegally surveil them. And who gets us closer to that world — Orin Kerr, or Marc Theissen?

Henry’s whole view is based on the conceit and, yes, self-flattery, that what matters is that there should be people on the other side who you can talk to in Henry’s preferred style. It’s part and parcel of the whole civility fixation, which as Henry has shown in this thread has nothing to do with actual civility, but which has to do with the preservation of a certain pool of opinion as respectable.

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engels 04.04.10 at 2:10 pm

Poco’s comment is pretty funny.

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Glenn Greenwald 04.04.10 at 2:35 pm

HENRY – The NYT Editorial Page denounced what it called “the frightening legal claim advanced by the Bush regime to justify holding Mr. Marri — that the president has the power to order the military to seize legal residents or American citizens and detain them indefinitely” And, referring to the 4th Circuit’s decision which Kerr defended, further said that for the Supreme Court to “leave the dreadful lower court ruling standing as precedent would be an affront to Americans and the Constitution.”

Leaving aside Kerr’s attempt to draw a distinction which virtually nobody else recognizes — between the power to do this to legal residents inside the U.S. and the power to do it to American citizens — Kerr defends a “frightening” power asserted by Bush that is an “affront to Americans and the Constitution.”

But it’s wrong to call him an extremist or a Bush apologist. He uses nice, soft, civil, professorial tones to advocate such policies and therefore is, in your view, a nice, moderate gentleman who deserves to be treated with great respect and not depicted as an extremist.

Have you reviewed the distinction between civility and decency which I commended to you earlier?

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aaron 04.04.10 at 2:51 pm

They took a legal resident in the U.S., studying at the University of Illinois and living with his wife and five children, and imprisoned him for years with no charges of any kind. They originally charged him with crimes, which he vehemently denied, and then right before his trial was about to start, they canceled it, declared him an “enemy combatant,” and gave him the Jose Padilla treatment. …Orin Kerr defends that.”

This is the thing that seems truly damning to me, and when I brought it up at the very beginning of the thread, Henry’s response was “this is a matter where there is real legal disagreement over the president’s war powers.” But the argument is quite explicitly not a “legal” one in any sense in which I understand the term to signify. Kerr’s claim is that since actually obeying the law would produce “bizarre” outcomes, we should ignore what legal protections the law of the land manifestly provide. It is, as such, not an argument about what is legal but the reverse: an argument for legalized lawlessness.

Seriously, read this garbage (which I’ve hopefully linked to correctly this time). Kerr invents a preposterous scenario with cartoonish terrorists in order to make it seem like following due process in criminal detection would produce bad results, but at no point does he claim that the thing he’s arguing for isn’t illegal; even the scenario he’s invented from his own fevered imagination presumes the basic illegality of the search: “The evidence against the cell members was obtained in violation of the Fourth Amendment…As a result, the evidence against the five men was obtained in violation of their Fourth Amendment rights…[and] must be suppressed.”

Shouldn’t the obvious point be that police should have followed the law in the first place? Especially given how weak the evidence was — a hotel employee says he saw Arabs behaving “suspiciously” — why shouldn’t the police have tried to determine whether a criminal conspiracy actually existed before willy-nilly shredding the constitution? It’s telling that Kerr finds it unremarkable that criminal investigation gets to forget about the law whenever “suspicious Arabs” are involved, but Kerr’s response to the fact that inadmissable evidence is, you know, not admissable in court, is what strikes me as truly preposterous:

“From a standpoint of policy, this result seems incredibly bizarre to me. Could it really be the case that the U.S. should have to deport or set free an Al Qaeda cell tying to blow up a nuclear bomb in the U.S.?…Could it really be the case that the most the government can do in light of the Fourth Amendment violation is to deport the men to a foreign country? I find that possibility just bizarre.”

That’s it. The claim is simply that the ends justify the means, that any restriction on the state’s power is, as a restriction of state power, illegitimate. Any statute that might prevent the state from arresting any terrorist that we are capable of imagining (which is what the appeal to counterfactual accomplishes) is therefore a dead letter?

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Glenn Greenwald 04.04.10 at 2:58 pm

AARON:

This is the thing that seems truly damning to me, and when I brought it up at the very beginning of the thread, Henry’s response was “this is a matter where there is real legal disagreement over the president’s war powers.”

This is the nub of the whole discussion.

Henry has embraced the primary Bush supporter/apologist claim that disputes over what Bush did are nothing more than good faith disagreements about the proper role of the Executive in times of war – they are not things to be condemned as assaults on the Constitution, crimes, instances of dangerous radicalism and the like.

Thus, they say, it’s terribly wrong to call for investigations and prosecutions because these were just good faith policy disputes by well-intentioned people over separation of powers during wartime.

If one adopts Henry’s views, then Orin Kerr is a reasonable conservative gentleman who — as Henry put it earlier — simply “has a more expansive understanding of state prerogative, the President’s powers in times of war etc than you do.”

But if you actually believe (as most progressives said they did) that these Bush policies were dangerous, extremist, lawless and tyrannical, then those who defended many of the worst policies (as Kerr has) could not possibly be seen in the innocuous and admirable light through which Henry views Kerr.

That’s why I don’t see Kerr the way Henry does. I actually believed what I was saying about the policies Bush embraced and Kerr defended.

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Yarrow 04.04.10 at 3:09 pm

Henry: “Kerr has never said anything even faintly problematic about torture”

Kerr’s “I haven’t studied the legal issues surrounding waterboarding closely enough to have an educated opinion about them” is certainly problematic. (This comes from a post about Democratic criticism of Michael Mukasey for saying essentially the same thing during his nomination hearings for Attorney General.) That was in 2007; Kerr has since come to the conclusion that waterboarding is indeed illegal.

Michael Drake objected to Kerr’s post at the time and has pulled out the relevant parts of the comment thread (http://www.strangedoctrines.com/2010/03/has-someone-waterboarded-orin.html). I haven’t checked every part of Drake’s cut-and-paste for accuracy, but this exchange does indeed occur in Volokh thread:

[Drake] Waterboarding is so paradigmatic a form of torture that asking whether it is “torture” is akin to asking whether intentionally shooting someone in the head is “murder.”

[Kerr] Not to quibble too much, but often intentionally shooting someone in the head is not murder. If it is performed in the “heat of passion,” for example, it will be only manslaughter in most jurisdictions. This is pretty basic criminal law, I think; it’s certainly a significant part of most first year criminal law classes.

Ugh.

Now this occurred in the comments of a post where Kerr was criticizing Bush for criticizing the Democrats for criticizing Mukasey; so yes, he did get a lot of right-wing grief in the post. But the “I’m only quibbling” defense (which he’s used in this thread as well) starts to wear out after a while.

I’m often put off by Greenwald’s full-throated pursuit of his points; but given the above, and given what other folks have cited in this thread, “sometimes-apologist” seems perfectly accurate (and fairly mild).

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Orin Kerr 04.04.10 at 3:21 pm

Glenn,

It seems to me that when I press you to actually support your view of the law, you claim that your view is so obviously right that no support is needed; you change the topic to something new; you then ask why I am refusing to respond to the new points. The effect is that you never actually provide any support for your view.

To repeat myself, I’m just asking for legal citations to support your narrow view that by trying to argue defenses in their briefing papers, the plaintiffs brought those issues into the case such that Judge Walker’s opinion resolved them. Judge Walker never mentioned the points or analyzed them, and your view is that he secretly resolved them. I just want some legal citations to support your view that this is true. Please provide some citations. If you don’t have any citations, please just come out and say so. That way I won’t have to keep asking you to provide the citations I was assuming you have.

As for your questions about my views of the law, I’ve blogged these so many times it’s kind of odd that you’re demanding answers as if I am refusing to come out and say them. In my view:

1. The TSP was illegal because it violated FISA.
2. Waterboarding violated the terror statute.
3. My view of the legal framework governing the Al-Marri case is that Judge Traxler’s concurring opinion for the en banc Fourth Circuit was basically right (at least as to the analysis: the exact scope of due process protections is really hard to say, as the HAmdi framework is so vague).

You ask whether the “Bush Administration committed crimes” as to (1) and (2), but that is a political phrase, not a legal one. Criminal law does not recognize crimes by Administrations. It assigns criminal liability to people, and in some cases to corporations. So you would need to ask if specific people in the Bush Administration committed crimes, which would have to take us into possible mens rea questions, the scope of aiding and abetting liability, various forms of immunity, and the application of estoppel principles based on reliance on OLC opinions. I don’t know if you’re interested in delving into those criminal law doctrines, as you have emphasized that your expertise is in civil litigation, not criminal law. But those are the kinds of legal doctrines you would need to grapple with if you want to start assigning criminal liability to individual *people* rather than make more political claims about crimes by an *Administrations.*

I suspect one of the biggest differences between us is that when I answer a legal question, I see myself as simply answering a legal question about what the law is, not answering a moral question about what it should be. That is, my goal is to follow the law, whatever that law is, not judge whether the law is good or bad.

That means that the outcome of my legal analysis often leads to results I don’t like: I might say something is illegal when I would actually like it to be legal, or that something is legal when I would actually like it to be illegal. Whether I like the practice or not is irrelevant to whether it is lawful. (Of course, there are times when I blog about what I think the law should be, in my view, but in those cases I am explicitly normative: I say I am making a normative claim, and I don’t claim that this is necessarily what the law is — I did this once with the Al-Marri case.)

As a consequence, if the Bush Administration or anyone else makes a legal claim, and I decide it’s an interesting legal issue worth blogging about, I will do my best to evaluate that legal claim to see if it is correct on the law without considering whether I want the law to allow that practice or not or whether I support the Administration making the claim. My approach is the same regardless of whether it’s a claim about federalism, surveillance, criminal procedure, interrogation, or some arcane question of procedure. The goal is to get the law right, whatever it is and regardless of whether I happen to like it. My sense is that your version of law blogging is very different.

So how about those citations? Let’s get into the cases, and start really grappling with the legal issues.

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aaron 04.04.10 at 3:23 pm

It’s also worth noting that Kerr’s argument that any legal check on government ability to pursue terrorists is, as such, “bizarre,” is quite easily applied to torture. Which is why Henry’s anger at Rich for daring to use the word is so telling; while it’s true that this conversation didn’t start out with torture, the only reason we’re having this conversation is because the basic principles under debate have broad consequences, which include the issue of torture. If police are supposed to disregard fourth amendment rights when the targets of their suspicion are suspicious Arabs, then why would statutes against torture be any different? In arguing for the first on principle, it naturally follows that the second is at least part of the debate.

But — in a post ostensibly defending civility — Henry responded to Rich’s use of the word torture by calling him a “kneejerk moron,” and just generally making himself ugly with his own display of patronizing contempt. And then, in comment 188, Henry gives us this stunning display of Ciceronian rhetoric:

“this is not about fucking torture Can I say that more clearly? No-one here most certainly not Orin Kerr is trying to justify torture.”

Yet how could a reasonable discussion of whether the good of the ends (arresting terrorists) make the question of means (how information about them is gathered) irrelevant not eventually get around to the issue of torture? The arguments for and against are exactly the same. And Henry’s efforts to argue that they are COMPLETELY DIFFERENT THIS ISNT ABOUT TORTURE just has the effect of obscuring that connection. Whether this is intentional or not, I couldn’t care less. But it sure doesn’t seem to me like any kind of good faith intellectual discussion on his part, which was, ironically, the very thing he positioned himself as defending in the original post.

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Orin Kerr 04.04.10 at 3:34 pm

Oh, and an academic aside: I wonder if the differences between Glenn and I boil down to the differences between a natural law approach and legal positivism. If you ask me what the law is on a topic, I will approach the issue as a legal positivist: I divorce what the law is from what I think it should be. In contrast, my sense is that Glenn has more of a natural law approach, in which what the law should be for a just society and what the law actually is are more blended together.

http://en.wikipedia.org/wiki/Legal_positivism
http://en.wikipedia.org/wiki/Natural_law

Both approaches have a long and important history in Anglo-American law; I wonder if our differences can be explained in part on our different approaches to that question.

(Oh, and in the comment above, it should be “torture statute,” not “terror statute.” Sorry about that)

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Orin Kerr 04.04.10 at 3:44 pm

Actually, given that the debates over al-Marri seem to be in play here, I have a question for those who think it is outrageous to detain someone on U.S. soil without charging them with a crime: What do you make of the civil commitment laws that allow for the detention of U.S. citizens on U.S. soil without criminal charges if they are deemed dangerous to themselves or others because they are mentally ill or sexual predators?

http://en.wikipedia.org/wiki/Involuntary_commitment

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Barry 04.04.10 at 3:47 pm

Kerr: “Oh, and an academic aside: I wonder if the differences between Glenn and I boil down to the differences between a natural law approach and legal positivism. If you ask me what the law is on a topic, I will approach the issue as a legal positivist: I divorce what the law is from what I think it should be. In contrast, my sense is that Glenn has more of a natural law approach, in which what the law should be for a just society and what the law actually is are more blended together.”

Or, to conjugate the verb a bit, ‘I’m objective; you’re biased’.

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aaron 04.04.10 at 4:15 pm

I have a question for those who think it is outrageous to detain someone on U.S. soil without charging them with a crime: What do you make of the civil commitment laws that allow for the detention of U.S. citizens on U.S. soil without criminal charges if they are deemed dangerous to themselves or others because they are mentally ill or sexual predators?

I think it’s a completely misleading analogy. The point under discussion isn’t whether it’s ever legitimate to imprison someone who hasn’t committed a crime, but how and where and when the state makes exceptions to its own laws, and the process in place to make sure this power isn’t abused. After all, from even the wikipedia article you cited, we find a whole system of legal checks on the state’s authority in this regard:

–a court hearing if the individual is hospitalized more than briefly.
–In most states, police officers and designated mental health professionals can require a brief commitment of an individual for psychiatric evaluation [but] If the individual is evaluated as needing further hospitalization, a court order must be obtained.
–Doctors, psychologists and/or psychiatrists present written reports to the court and in some cases testify before the judge.
–The person who is involuntarily hospitalized, in most U.S. jurisdictions, has access to counsel.
–A commitment is always time-limited and requires reevaluation at fixed intervals.
–It is also possible for a patient to challenge the commitment through habeas corpus.

And even the way you put it illustrates the difference; for good or for ill, the “criminally insane” have to be “deemed” dangerous in order for their rights to be put aside, and a process exists to make sure this only happens when absolutely unavoidably necessary. In the situation we are actually discussing, the stakes are very different, since the legal checks on what the state can and can’t do, in practice, seem to simply disappear whenever the magic word “terrorism” is uttered. The problem is that no process at all exists to prevent the abuses that are still occurring, and that has become the precedent.

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ScentOfViolets 04.04.10 at 4:31 pm

Henry’s whole view is based on the conceit and, yes, self-flattery, that what matters is that there should be people on the other side who you can talk to in Henry’s preferred style. It’s part and parcel of the whole civility fixation, which as Henry has shown in this thread has nothing to do with actual civility, but which has to do with the preservation of a certain pool of opinion as respectable.

Without delving into any teleological conceits :-), this is a style that favors the one adopting it over one who eschews its use. Someone like Glenn who doesn’t recognize the niceties of Henry’s “civility” will seldom call anyone on it (at which point it devolves into a pointless and unresolvable war of opinion over who is the more “uncivil” and who “started it”.) On the other hand, look at what just happened above: When a claim about conspiracy theories is proven to be simply, factually wrong, rather than acknowledge that this is so, the debate is shifted to whether or not “useful idiot” is a polite thing to say.

Again without going into teleology, this seems to be a style designed to allow those who wield it to never have to concede anything, and whether intentional or not, using it is not a sign of good faith.

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jeer9 04.04.10 at 4:35 pm

Prof. Kerr is a very, very funny man. Please continue to contribute to this thread and “grapple with the legal issues.” Such grappling is becoming addictive in a Monty Pythonish sort of way. Do you by any chance look like John Cleese or Michael Palin? That would be too rich.

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kid bitzer 04.04.10 at 4:36 pm

so, henry–it has become clearer with every additional comment that orin kerr is, indeed, a dishonest hack.

but he is so lacking in shame or fundamental decency that he cannot even see that he has torched his own reputation.

so the only question is: are you going to run out of the house on fire before it falls in, or are you going to continue trying on bow-ties while the mad man insists that you aren’t really smelling smoke?

do we get to witness one public reputational suicide here or two? it’s up to you, henry.

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Orin Kerr 04.04.10 at 4:53 pm

Aaron,

Yes, I agree with you: There need to be checks. Indeed, under Hamdi, there are checks. I’m curious, have you read the Hamdi decision, and specifically Justice O’Connor’s controlling plurality opinion? My own view of Al-Marri is that it requires roughly the same due process balancing framework as Hamdi: That’s been my position from the beginning. The issue raised by the panel decision in Al Marri is different, though: The question was whether there is any power at all to detain al Marri outside of the criminal law process, not what process was due to Al Marri.

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Henry 04.04.10 at 4:55 pm

aaron – I have found in my experience that “telling” is one of those words, that when applied, usually in fact means “not so telling” – it is typically applied in order to suggest a claim that the person in question does not in fact have evidence to support (or he or she would use this evidence, rather than harp on about the “telling”ness of this, that or the other thing. This thread isn’t about torture because it isn’t about torture. Nor is Kerr arguing that there should be no check on the government’s ability to pursue terrorists (this is a pretty serious misstatement of his claim).

Glenn – again, this is ducking the point. I don’t recall Kerr ever voicing an opinion as to whether or not the plaintiffs in al-Marri deserved relief. The point – and I will keep on pushing it – is that _your specific accusation that Kerr was defending monstrous acts_ was predicated exactly on the claim to authority. Again, I ask – if I were to come out with an accusation that you were a noxious public defender of the US Chamber of Commerce’s efforts to exert control over US political speech using the authority of Lessig etc, this would be a problem. Especially if I notably failed to mention your own specific views on the topic. And modifying the claim to one that Glenn Greenwald “served the function” of providing a left-libertarian defence for corporate control wouldn’t help very much either. So again – I’d like to ask you to engage with Kerr’s specific arguments, drawing on _Milligan_ etc.

Rich – the point I am trying to make is that either kind of argument requires a lot of work, and that ‘useful idiot’ style arguments tend to be lazy and to substitute, as per Glenn Reynolds, for actual thought or analysis, while still allowing aspersions to be cast.

Kid bitzer – I suppose I’ll have to live with your lowered opinion of me …

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Orin Kerr 04.04.10 at 4:58 pm

Jeer,

Thanks for the generous comment: Glad you like my writing here. No, I don’t think I look like John Cleese or Michael Palin. I’m bald, so I think I look more like, well, other bald guys. But I do really like Monty Python. Holy Grail remains one of the best movies ever.

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Sebastian 04.04.10 at 4:59 pm

“Those are dangerous, lawless and extremist policies which he justifies. Some differences of opinion – most – are within the realm of the reasonable; those aren’t.”

And to be clear, most of these are policies that the Obama administration defends as well, with lawyers who are not just ‘defending’ it in some abstract sense, but actually doing the legal work to continue to make it so.

I actually think that the involuntary commitments is a useful analogy. And frankly the safeguards aren’t nearly as good as you’d think. From a normative perspective I believe we shouldn’t really have those for anything more than very brief periods of time. Holding an alleged sexual predator for the rest of his life based on predictions of future behavior just makes it sound to me like we don’t punish rape strongly enough.

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Crooked Ref 04.04.10 at 5:28 pm

I would join a few others upthread in thanking Glenn and Orin for their largely civil (by contemporary standards) exchanges. A few suggestions to resolve this, other than by sheer exhaustion:

1. Orin, admit that your original post contained overstatements, or at least that your supposedly technical objection was subject to its own technical objections (e.g., to statements like “the decision doesn’t rule that the program was unlawful” or “the decision today wasn’t actually about the lawfulness of the warrantless surveillance program”). It really does look like it’s you who is primarily responsible for shifting the topic (contra your accusation in #262).

2. Orin, also admit that whether you are criticized from both sides really has little evidentiary significance in determining whether you are an apologist or partisan. One can almost always be outflanked.

3. Glenn, concede more clearly that the court’s decision adds little clarity to the underlying merits (e.g., is of little utility in assessing how another court in another jurisdiction would react to the issue were it fully litigated — though I read you and Orin to agree that such a court should, if the merits are reached, reject Bush-era arguments). You stray a bit at points, as in ##205 and #255, which gets back into the new discussion (how much Article II bears on this, for example) on which Orin now prefers to focus.

4. Glenn, distinguish and reflect routinely on the question whether incivility is the best technique for exposing what you regard as indecency. I think you style yourself as someone who is simply direct and accurate, but presumably you also hope to educate and persuade, and sometimes your capacity to do so is inhibited by your choice of rhetoric. Two danger signals you might take into consideration: (a) tossing in modifiers like “complete,” “total,” “incredible,” etc. sometimes does less with more; (b) when you make inferences about another party’s intent, state of knowledge (e.g., as it relates to honesty), overall function in the intellectual universe, or totality of views, you typically stray into more speculative territory on which you possess less relative expertise than on the legal matters you analyze.

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Salient 04.04.10 at 5:49 pm

Apropos of nothing,

aaron – I have found in my experience that “telling” is one of those words, that when applied, usually in fact means [its opposite]

Topping this list of words is the phrase “it is clear that” :)

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Salient 04.04.10 at 6:04 pm

More germane to this discussion,

I wonder I’m a dishonest hack of a person. Help me out, folks. Here’s the issue.

If the policies in question turn out to be constitutional and legal, I would rather see that information suppressed and even contradicted by those in a position to do so, in the same way that if someone violates the letter of an unjust law I’d prefer to see the jury issue a not guilty verdict even when the facts clearly contradict that verdict. I mean this quite literally, although I feel conflicted about it.

In particular, if the newspapers reported the court decision in a way that enhances the protection of the powerless at the expense of accuracy, I applaud that, and I would similarly celebrate if I learned Orin Kerr had noticed such an error in the newspapers but not mentioned it.

So, in the end, even if Orin is right I don’t feel terribly good about it, and even if Glenn is wrong I’m somewhat glad he’s taking his stand. And I hope his interpretation of the ruling, even if factually incorrect, carries the day.

That’s because I see the topic as a human rights issue. In this context, the letter of the law and constitution only interests me insofar as it serves my interest: protecting the powerless. For example, if the surveillance in question is technically legal and/or constitutional, that offers the program no authority. Instead it renders the accommodating law or constitution illegitimate (or immoral, whichever you prefer) and unworthy of deference. In the case of issues which aren’t recognizable to me as human rights issues, I don’t feel the same way.

If I were in a position to interpret the program in question, I would do so in a way which preserves and protects human rights, even if this were to technically conflict with my official recognized position.

Does this make me a hack? Is this horrible of me?

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Pinko Punko 04.04.10 at 6:16 pm

Crooked Ref seems to nail the point.

To add, since this thread contains numerous threads of argument, I’d like to request a relatively easy construction.
To BLANK:

When you say x, my interpretation of x is as follows, and therefore I find x to be in error, for the following y reasons.

For almost 300 comments, disregarding for the moment extensive history and evidence of claims of hackishness, apologistism, shrillness, and incivility, also of course patronizing and inflammatory direct and indirect behavior, in the major case at hand:

Claimant Kerr: the ruling was on the surveillance not the program or the defense of the program.

Claimant Greenwald: the ruling necessarily covered and asserted the plaintiffs claim of illegality on the merits of their argument, without specific need to address all the individual arguments presented by the plaintiffs. The finding of illegal surveillance for all intents and purposes renders the program illegal because our understanding of how the program worked is that there would be no difference in its surveillance of other individuals than in the case of the plaintiffs.

Is this shorthand above correct in at least broad brush strokes so that we may begin from clearly stated premises?

Sorry to sound like a chump, but typing comments on the internet almost necessarily makes one sound or seem to at least some ears, chumpish.

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IM 04.04.10 at 6:26 pm

Regarding legal positivism: When I was young and excitable, I liked to play this game too: “You are just a supporter of natural law and not a pure objective supporter of the rule of law like I am, made pure by my acceptance of legal positivism.” A funny game, but in most debates pretty pointless.

As is the case here. This debate has nothing to do with legal positivism and the alleged natural law sins of the other debatants.

So this is just the building of another strawman.

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Heur 04.04.10 at 6:47 pm

Kerr’s actual request, in 214:

You seem to be arguing that because the plaintiffs affirmatively argued the inapplicability of the Bush Administration’s arguments before Judge Walker, Judge Walker must have considered those arguments and ruled on them even though he never actually mentioned them and the defendants did not themselves raise them. What I’m looking for is the legal authority to support that position —that a plaintiff can argue a defense that the defendant doesn’t raise, and that the judge’s ruling on the motion implicitly is a ruling on the defense even if the defendant never raised it.

Greenwald’s characterization in 255:

As numerous people have pointed out to you, the “legal citations” you requested are based on a total distortion of what’s being argued, and seek support for a proposition so obviously ludicrous—that when a Court grants Summary Judgment, it necessarily has considered and rejected every single possible argument that the non-moving party might have raised but didn’t—that it, by itself, proves your lack of good faith.

I don’t think the difference here is one of legal positivism vs. natural law theory.

I think the difference here is that between a litigator and a professor, between an advocate and a clerk. I think Glenn is writing briefs, and Kerr is writing memoranda.

But for Glenn, there are no memoranda or clerks in this fight. Every item of analysis is an argument for one side or another, and every regular commentator is on one side or the other.

Put differently, there is a clash of norms concerning the purpose of the discussion. In one case, the overriding norm is obtaining the right outcome; in the other, the overriding norm is illumination of the various sides of an issue.

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jdw 04.04.10 at 7:40 pm

As twilight falls on this interesting debate, and we possibly spare a moment to think of those who have been defeated after a gallant struggle, I would like to note that Kerr no doubt needed a talking point for when he next meets his students, other than “I had my ass handed to me”, and that talking point is possibly going to be natural law versus positivism.

Secondly that in this context “positivism” probably means “abstracting from the mutual reinforcement that naturally occurs between issues including warrantless wiretapping, indefinite confinement with no or only superficial legal process, and torture”. No talk of tyranny, please, and certainly “this is not about fucking torture.” Such abstracting is the only thing that would enable Kerr/Henry to say any mis-characterization of the judge’s ruling on the legality of warrantless wiretapping has no major importance.

Finally, that on a personal level, this attitude depends on a level of real or bogus anesthesia, or the inability to actually sense the world around them. This is done under the banner of pursuing, or supposedly pursuing, a “scientific” endeavour.

(This also made me think of Henry’s interesting “scientific” work on the blogosphere, where he showed that links between Kos or Huffington on the one side, and M Malkin and that ilk on the other, are “deliberative”, while links within a group coded as similar or uniform, are non-deliberative. Thus, all he was doing here was to promote “deliberation”, not to remove a thorn from the shoe of his distinguished colleague.

This too would require considerable degree of anesthesia, obviously, but I don’t know, maybe I’m just involved in a little pretend science here too.

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ScentOfViolets 04.04.10 at 8:04 pm

This also made me think of Henry’s interesting “scientific” work on the blogosphere, where he showed that links between Kos or Huffington on the one side, and M Malkin and that ilk on the other, are “deliberative”, while links within a group coded as similar or uniform, are non-deliberative. Thus, all he was doing here was to promote “deliberation”, not to remove a thorn from the shoe of his distinguished colleague.

What’s odd is that in that conversation (if that’s the one I participated in), I was somehow cast in the roll of Kerr while he was Greenwald. Though to be fair, it’s a common plaint of statisticians that everyone gets statistics wrong except themselves. Especially those dabbling in the social sciences.

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Rich Puchalsky 04.04.10 at 10:08 pm

“Rich – the point I am trying to make is that either kind of argument requires a lot of work, and that ‘useful idiot’ style arguments tend to be lazy and to substitute, as per Glenn Reynolds, for actual thought or analysis, while still allowing aspersions to be cast.”

Funny! Here’s what I did to support my argument: I turned up one of Kerr’s writings, specifically choosing one that had not been cited by Greenwald in order to get an independent look at the evidence. I made sure that it was writing in a major venue (i.e. testimony to the Senate, not a blog comment somewhere). I read it and took the time to understand it. I noted that a critical quote had strategic ellipses and tracked down the original of the quote to see how it had been altered. I cited and quoted what I regarded as independent evidence that Greenwald’s depiction of Kerr was accurate, that he has indeed functioned over a period of time in the U.S. political system as an apologist for Bush policies around surveillance.

Meanwhile, what have you done, Henry? Picked through an old post of Kerr’s for a few talking points about what he says that Greenwald got wrong?

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Rich Puchalsky 04.04.10 at 10:54 pm

“Again without going into teleology, this seems to be a style designed to allow those who wield it to never have to concede anything, and whether intentional or not, using it is not a sign of good faith.”

ScentOfViolets is quite right. It’s gotten to the point, in the U.S., that anyone mentioning their commitment to civility or any of a range of associated values is in fact signaling its opposite. The key ‘tell’ is Henry’s original post was “it’s necessary, in the end of the day, to recognize that we live in a plural society with competition over values, in which the other guys are going to win, at least some of the time. ” The obvious implication is that the-people-unlike-Henry do *not* think that we live in a plural society with competition over values, or are so deluded as to think that they can win all the time — those fanatics!

Because of Henry’s characteristic stonewalling, I never got to the point where I could mention the ludicrousness of this whole “plural society with competition over values” thing. Henry wants everyone to talk like him. Where does that leave the people who want moral condemnation, not academic argument, as a response? Well, it leaves them where it leaves all DFH’s. Not respectable, not worthy of being heard. And if someone like Greenwald does manage to get into some sort of semi-elite media position, that person is subject to whiny little critiques about their supposed inaccuracy — while the complaint is really about how dare they condemn someone who was just taking a respectable intellectual position. For all of his supposed, academic approval of partisanship, Henry is a fine representative of the people who say “plural society with competition over values? Fine — as long as you argue like a respectable person, you can have any values you want.”

Note also that “respectable person” in my formulation does not, as Henry shows in this thread, mean someone who respects evidence, or who argues well, or indeed follows ordinary norms of civility. In practice, it means someone who is willing to condemn certain other people for not being respectable.

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jdw 04.04.10 at 11:31 pm

(Btw, ScentofViolets, I don’t recall the particular discussion, but the paper I was referring to is at themonkeycage.org forward slash blogpaper.pdf. I’m sure if it was a discussion with Henry about his methodology, it would have been a frustrating experience. My point is that Henry and the other two authors say left blogs linking to things like Drudge, Malkin, and LF Footballs are indications of “deliberation”, and they denigrate left links to any other blog they have coded as left as what they call “cloistered cocoons of cognitive consonance”, and elsewhere as “red meat for carnivores”. Isn’t that cute? I think this somehow ties in with what Rich is saying, in the sense that gentlemen will obviously tend to “deliberate”, and you can often (as in the case of the gentleman Henry) recognize them by their lecturing others who do not deliberate sufficiently. Cutting-edge pseudo-science at its most useful!

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LFC 04.04.10 at 11:59 pm

I’m no longer reading every single word of this thread, but for some reason I’m still looking at it.
Two quick comments:
First, the suggestion by Prof. Kerr that this has to do with legal positivism versus natural law is just… well, suffice it to say that I think it has no relevance whatsoever to this debate.
Second, if Prof. Kerr is really interested in getting citations, he could have done the research himself in the time it has taken him to repeatedly ask G. Greenwald for it. I’m sure his computer can give him quick access to legal research databases, and all he has to do is go to the Federal Rules Service (or whatever it’s called these days), which collects the federal appeals court cases dealing with interpretation of the Federal Rules of Civil Procedure. It’s possible that no court has yet addressed the specific issue he’s asking about, in which case the reasonable conclusion to draw is not that he’s right but that the question hasn’t been addressed yet. (Plus he keeps saying that Greenwald’s view is that Judge Walker “secretly” resolved the questions when people have pointed out repeatedly that the judge did refer to what the plaintiffs said about the invalidity of the likely defenses.)

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Marfrks 04.05.10 at 12:09 am

What an extraordinarily interesting debate. Thanks to everyone. It seems clear to this reader–who has nothing at stake–that Henry is refusing to see things, while Kerr is smoothly awful (the last line about natural law theory and legal positivism is so absurd that I thought at first it was a joke). I feel a cliched impulse to find something balancing to say about Greenwald, but no impression of him is as strong as those two impressions of the others. My own view of the divide may only reflect that it hits a fault line in my life: the difference between an academic and a non-academic approach to things. I have been a lawyer for many years, and then got a chance to teach at a non-lawyerly academic institution. I loved it; I loved playing in the garden of the mind. Eventually, however, it became clear to me that academics and non-academics have very different approaches to ideas. Academics, though it sounds odd to say it, don’t take ideas seriously. For academics, ideas are games, as Kerr illustrates when he speaks so proudly about how he follows reason wherever it takes him. He seems to find that admirable, whereas I–having now sat through many faculty meetings where the propriety of rules about faculty parking are argued from Platonic first principles–find it both tiresome and puerile. Ideas about the Constitution should not be treated as intellectual exercises only. It is a practical document, with clear principles relating to freedom and the protection of the powerless from the abuses of authority that every government in the history of the world has been tempted to engage in. If someone’s version of reason leads him or her to contemplate the weakening or contravention of those principles, that is not admirable or disciplined or honorable. It is misguided games-playing. It reminds me of all those right wingers who used to talk about the “courageous” decisions to bomb various countries that were made by “serious” people. Academics were playing war games and recommending intellectualized experiments with other people’s lives. That was allowed to happen in part because those people seemed so nice and smooth and academically intriguing. “Don’t be shrill,” we were told, when we pointed out that the war in Iraq was morally wrong. That was lousy advice for the country and for the world. I don’t enjoy being shrill myself, but I’m inclined to think that someone needs to be shrill when intellectuals play games with surveillance, imprisonment, torture and death.

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David 04.05.10 at 12:53 am

@Marfrks. Let me second seth and move that this thread might as well be closed because imho Marfrks has driven a stake through Henry and Kerr (sorry I can’t — although I deny that I did — mangle a metaphor for you).

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Steve LaBonne 04.05.10 at 1:03 am

Academics, though it sounds odd to say it, don’t take ideas seriously. For academics, ideas are games, as Kerr illustrates when he speaks so proudly about how he follows reason wherever it takes him. He seems to find that admirable, whereas I—having now sat through many faculty meetings where the propriety of rules about faculty parking are argued from Platonic first principles—find it both tiresome and puerile.

Oh, man. That right there was sufficient justification for the existence of the whole damn thread. As an ex-academic (albeit in science) I can scarcely express just how much I agree with this, and especially with the frustration. Thank you, Marfrks.

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onymous 04.05.10 at 1:30 am

Eventually, however, it became clear to me that academics and non-academics have very different approaches to ideas. Academics, though it sounds odd to say it, don’t take ideas seriously. For academics, ideas are games, as Kerr illustrates when he speaks so proudly about how he follows reason wherever it takes him.

Because, as everyone knows, all academics have exactly the same mindset.

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parsimon 04.05.10 at 1:40 am

Academics, though it sounds odd to say it, don’t take ideas seriously. For academics, ideas are games

Oh, now. Hold up. If you want to make that claim with respect to academic versus practicing lawyers, go ahead (IANAL). Otherwise, this comes a tad too close to various blanket condemnations of ivory tower eggheaded elitists — mix and match the terms as you like. I understand, heat of the moment and all that, but take care, just a bit. It can just as easily be said that practitioners don’t take ideas seriously, while scholars do. This strikes me as a very serious (as in, comical) red herring.

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Henry 04.05.10 at 1:53 am

jdw – this is a wide-reaching feat of misreading. If you care to re-read “the paper in question”:http://www.themoneycage.org, you will find no references to links between Michelle Malkin and Huffington Post or anything like this. When you say:

This also made me think of Henry’s interesting “scientific” work on the blogosphere, where he showed that links between Kos or Huffington on the one side, and M Malkin and that ilk on the other, are “deliberative”, while links within a group coded as similar or uniform, are non-deliberative. Thus, all he was doing here was to promote “deliberation”, not to remove a thorn from the shoe of his distinguished colleague.

it’s a pretty remarkable claim, since we have _no data on cross-linkages between blogs whatsoever_ in the paper, that we could code as deliberative, non-deliberative, whatever you’re having yourself, looks like flies from a distance, or any other imaginable coding scheme. WE DO NOT HAVE THIS KIND OF DATA AND HENCE DO NOT CODE IT. That you think we have this data, and erroneously claim that we have miscoded it suggests that you haven’t actually read the paper (you have apparently (mis)read bits, so perhaps you’ve skimmed it).

Now we do refer in passing to other people who have tried to evaluate cross-cutting links among blogs – but we do not ever claim that such linkages are evidence of deliberation. Cross-cutting conversations are a necessary but far from sufficient condition for political theorists’ ideas about what deliberation involves. But importantly, as we specifically discuss in the paper, right after the bits you actually seem to have read, _standard norms of deliberation are not the only possible standard for evaluating blogs._ To quote what we actually do say ( _in extenso_ – apologies to all, but since we have been accused of making arguments we didn’t … ).

Deliberation entails a dialogue between opposing views, but blog authors tend to link to their ideological kindred and blog readers gravitate to blogs that reinforce their existing viewpoints. Both sides of the ideological spectrum inhabit largely cloistered cocoons of cognitive consonance, thereby creating little opportunity for a substantive exchange across partisan or ideological lines. The potential trade-off between participation and deliberation noted by Mutz (2006) appears as salient in the blogosphere as in personal networks.

Discourse in the political blogosphere is more compatible with accounts of deliberation (Knight and Johnson n.d.) that emphasize the importance of clashes of interest, sharp disagreement, and conflict in deliberation, and suggest that some of the claims of more optimistic scholars of deliberation are utopian. This account implies a greater potential for deliberative exchange as a result of blogs. Even so, although political blogs, and the internet generally, facilitate information search and acquisition thereby conceivably enhancing people’s ability to learn about opposing points of view few readers avail themselves of these bene fits. Blog readers thus have less opportunity for revising their opinions than they might otherwise have. Some bloggers are explicitly willing to forego an exchange among opposing views to promote the involvement of their side. As a prominent blogger on The Daily Kos describes that site:

This site is primarily a Democratic site, with a heavy emphasis on progressive politics. It is not intended for Republicans, or conservatives. … This is not a site for conservatives and progressives to meet and discuss their differences. … Conservative debaters are not welcome simply because the e orts here are to de ne and build a progressive infrastructure, and conservatives can’t help with that. There is, yes, the danger of the echo chamber, but a bigger danger is becoming simply a corner bar where everything is debated, nothing is decided, and the argument is considered the goal. The argument, however, is not the goal, here. This is an explicitly partisan site: the goal is an actual infrastructure, and actual results.

Strong partisanship of the kind expressed by this blogger may have substantial normative benefi ts. Rosenblum (2008) argues that partisans help construct political cleavages, creating order in what would otherwise be an unruly mess of inchoate and unrelated issues. In her account, conflict between clearly articulated political viewpoints can have important epistemic benefi ts. If so, then bloggers and blog readers play a valuable democratic role.

Let me spell out the basic claims here.

[1] That on the arguments of traditional theories of deliberation (those that scholars of deliberation usually employ – and there is an extensive literature here), blogs are not a good example of deliberation. One of the core conditions of deliberation is meaningful dialogue between people from opposed opinions. Blogs are not that hot on this – and both reflect and plausibly tend to create different mental universes on either side of the partisan divide.

[2] That this may perhaps tell us more about the lack of realism of theories of deliberation, than about the deliberative problems of blogs. The kind of argument that we _do_ see occurring among blogs better reflects a different set of standards for deliberation articulated by Knight and Johnson which is much more focused on strong clashes of opinion, conflicts between people with opposing interests etc. However, even on this more limited standard of deliberation, a deliberative theorist would probably prefer to see more people reading blogs from the other side, and taking their arguments seriously.

[3] But even so, blogs may still be very valuable from a normative point of view. Deliberation is not the only normative standard in town. There is good evidence that some bloggers have looked at the tradeoff between deliberation and effective political action, and decided to limit deliberation in favor of more effective partisan mobilization. This is a perfectly reasonable choice – all the more so because, as some theorists have argued, partisanship in and of itself has key benefits for creating knowledge – sharp conflicts between partisans shape the contours of politics and give it structure. Under this standard, blogs are actually pretty awesome looking.

I’ll take it that this was an honest, if clearly tendentious misreading. In the article, we specifically do not come down on the side of the one or the other possible way of evaluating the benefits and weaknesses of blogs. It’s a political science piece, not a political theory piece – we’re not making arguments for or against, but telling political theorists and others how blogs look, given their views on the world.

Your misreading is particularly problematic because in other writings on the WWW I state my own personal views on this (which my co-authors may or may not share – we haven’t talked much about this), and I plump for [3] (although if pushed, I would certainly have to make room for [2] too.). In other words – I think that the role played by partisan blogs in shaping the contours of political debate is enormously valuable – in part because they don’t live up to the (in my opinion hopelessly unrealistic) standards set by the majority of democratic deliberation theorists. I would also like to see, however, more cross-reading – on the “I beseech you in the Bowels of Christ, consider that you may be wrong” – of intelligent people on the other side of debates. This would involve a certain trade-off in partisan zeal – but would imo be worth it. But as for your reading – it’s completely and demonstrably wrong. I have repeatedly – across a variety of fora (check out my pieces for the Prospect linked to from my website, and my various accounts of Nancy Rosenblum’s political theoretic work on the benefits of partisanship for starters) made it clear that I greatly prefer the kinds of partisan debate offered by blogs to the anodyne ideals of deliberation offered by Fishkin and others. (Perhaps right at this moment those ‘kinds of partisan debate’ look a little less attractive to me than they sometimes do – but I am sure it will pass). I am not going to suggest that you deliberately misread this piece to suggest that I hold normative opinions explicitly the opposite of those that I do hold, and have frequently expressed – mistakes happen when opinions get heated. But I do suggest that you think a bit about the reasons _why_ you misread in this way, since I think it is the kind of misreading which has been endemic to this thread – doing a quick and sloppy read which leads to you mistaking arguments (likely flawed and perhaps mistaken, as all arguments may be) about how things are, for arguments about how things should be. When I say that deliberation theory doesn’t like the blogs, I am not saying that there is something wrong with the blogs – the fault equally plausibly lies in deliberation theory. In my view (again, not nec. my co-authors), the fault mostly _does_ lie on the side of deliberation theory. And this is something that I have argued repeatedly.

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Henry 04.05.10 at 2:07 am

PS – I should link to this _American Prospect_ “essay”:http://www.prospect.org/cs/articles?article=can_partisanship_save_citizenship which is probably my most extensive argument on these topics. People who think that I’m down on teh partisanship and up on teh deliberation theory should really read it.

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Henry 04.05.10 at 2:15 am

PPS – and since people frequently do not follow link-throughs, I’ll excerpt the main bit on partisanship and deliberation below.

Technology and partisanship aren’t only increasing participation. They’re also leading to a burgeoning of public debate, albeit not the kind that Fishkin and other academics imagined. Political blogs don’t fit well with deliberation theory. They are rough, raucous, and vigorously partisan. Yet they have been far more successful than any deliberative experiment in encouraging wide-scale political participation and involving large numbers of people in real and lively democratic debate. Successful deliberative experiments have typically been small-scale, leading to real doubts about whether they can be scaled up to even the level of a state. The distributed conversation of the blogs, in contrast, involves millions of people, arguing vehemently about politics and other issues in interconnected forums of debate.

The blogosphere is far more disorganized than the typical campaign. Even so, debates between political bloggers tend to be structured in certain ways. Most substantive argument occurs within partisan boundaries rather than across them. There are few nonpartisan political blogs in the U.S., and none is very successful. Systematic efforts to encourage bipartisan conversation, such as Hotsoup.com and Left2Right (which was set up by distressed left-wing philosophers to encourage dialogue with the right in the wake of the 2004 elections), have invariably failed. Research suggests both that bloggers tend overwhelmingly to link to other bloggers who share their partisan views, and that readers tend overwhelmingly to read blogs that reflect their political affiliations.

Yet this likely reflects the enduring realities of politics more than any particular failure of blogs. As Jack Knight and James Johnson argue in their forthcoming book, Politics, Institutions and Justification, deliberation can neither magically smooth away deep-rooted political differences nor replace voting and elections in large-scale democratic systems. In a country like the United States, where people’s interests and political viewpoints often differ starkly from each other, argument and persuasion are unlikely to transcend partisan affiliations. Political discussions of issues where people strongly disagree are less likely to result in consensus than in winners and losers.

On this more realistic standard, blogs play an important and often valuable role in shaping democratic arguments between the left and the right. “Netroots” blogs, such as DailyKos and FireDogLake, which are oriented toward partisan politics, have reshaped internal debates about how Democrats should respond to the Republican Party. Even if these blogs are not systematically ideological, they have helped rebuild a more vigorous Democratic Party that is less abashed about its philosophical liberalism. These blogs may have also helped encourage Democrats to get involved in politics. Statistical evidence suggests that readers of left-wing blogs are more likely to participate in politics than either nonreaders or readers of right-wing blogs (even if the direction of causation is uncertain). The same is not true of broadly based deliberation; if anything, the evidence suggests that deliberation across party lines actively hurts political participation.

Moreover, while some politicians in the 1990s hoped for a more engaged citizenry, this level of participation also holds those same politicians accountable in new ways. For example, Josh Marshall’s Talking Points Memo blog forced centrist politicians to stop prevaricating about their preferences over Social Security reform, stymieing their efforts to glide through the debate with mealy evasions. This may not be the kind of accountability that Fishkin favors, because it reflects partisan preferences more than an effort to reach bipartisan consensus, but it is none the less valuable for that.

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Orin Kerr 04.05.10 at 2:28 am

On the question of whether Judge Walker did silently and secretly consider the defenses raised by the plaintiffs, I did look for some citations myself when I began to figure that Glenn wasn’t likely to provide the citations himself. It turns out to be a little tricky to craft a Westlaw search for it, though. I figured that perhaps the “actually litigated” requirement of claim preclusion could be the window into the question, so I ran queries with variations of (“claim preclusion” “collateral estoppel”) /s defense). But that just led to hundreds of references to courts saying that claim preclusion is an affirmative defense, which obviously isn’t helpful. Does anyone else have any ideas?

Anyway, it seems to me that Glenn Greenwald is the natural person to provide us with the cites that he has in mind. He is the one claiming to be an expert in civil litigation, not me, and he is the one claiming that the answer is so easy that failure to see it makes one dishonest or stupid. Given that, I’ll ask again: Glenn, please provide us with the citations you have in mind, or else just say you don’t have them or won’t share them. Thanks.

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Russell L. Carter 04.05.10 at 3:03 am

@Orin Kerr’s latest.

This is just ridiculous.

I’ll repeat my intial evaluation: Orin Kerr is 50% hack, but this is much much better than some of his blogmates. Henry’s term was ‘execrable’ and I have to admit, that’s accurate.

You’re going to have a hard time fitting this thread into your more naive classes, Orin.

Best,
Russell

297

politicalfootball 04.05.10 at 3:08 am

Kerr, Greenwald offered in 205:

I did NOT say that the Court necessarily anticipates every defense, including ones defendants haven’t raised. That suggestion is beyond absurd.

This seems obvious, and it has been explained many different ways. Here’s what you said above.

Take the case of a default judgement. Imagine I sue you, saying you are a space alien who stole my soul and that I am entitled to $100. You decide not to show up to defend the charge, and the judge enters a judgment in my favor. Did the judge rule that you are a space alien who stole my soul? I would think the answer is no. Do you disagree?

I thought this was so obviously wrong that it wasn’t worth responding to, but you seem stuck on this point. IANAL, but I disagree. It seems apparent that a judge who so ruled would be, in fact, ruling that the plaintiff had proven to the appropriate standard that the space alien stole his soul – and, moreover, that such theft entitled the plaintiff to damages.

You claim no expertise in civil law; is your expertise in criminal law? This is an elementary concept in criminal law. People aren’t necessarily convicted just because they refuse to mount a defense. Even if they confess, that’s not enough. Arguments for the defense of such a person must be considered by a judge, even if the defendant explicitly denies the validity of those arguments. (I’m still not a lawyer, but is there any doubt about this whatsoever?)

Do you really think that judges consider only arguments that are brought before them?

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Marfrks 04.05.10 at 3:24 am

On 291: I agree that all generalizations about academics are false (that’s a joke–I really do appreciate your exhortation to caution). I love the academic life for its creativity and for the delight of watching a student’s mind open. I guess the more targeted way to say what I am trying to say with regard to academic arguments about politics is to challenge the idea that Kerr suggested that someone who has no stake in something is therefore more objective and therefore more to be trusted. That seems to me wrong. In my experience, if someone in an argument has nothing practical at stake, they either find something else to do with their time or, far too often (it seems to me I saw it in this thread), they adopt for themselves an abstract stake in winning the argument. What is at stake for them is proving their intellectual heft, which in the academic and pundit world can translate to jobs and success, and at the very least to prestige. Thus they do have a stake that they are not admitting, perhaps not even to themselves. In the academic world they are rarely called on this because everybody is competing in that way, and because no practical consequences follow academic arguments. People who see they are losing can slide away with distracting arguments about natural law and the like, saving face, while secretly triumphant but sympathetic colleagues civilly allow them to do so. I have no real quarrel with that practice in an academic setting, and don’t mean to sound cynical. I even find it endearing and laudable as part of the fits and starts of creativity. If this ethos is brought into a world where there are consequences to debate, however, where people might get bombed depending on the outcome of an argument, the unadmitted stake of wanting to win the argument must be firmly identified as shamefully trivial, and should not be shown the civility that can be safely afforded to it in an academic setting. Of course there are academics, even many academics (all of whom, I like to believe, start out by loving truth for its own sake), that honorably fight the human tendency to invest an argument with these shamefully trivial stakes and enter their discussions looking eagerly and solely for truth. Those academics aren’t likely to succeed in punditry, nor would they be interested in doing so, I suspect.

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Crooked Ref 04.05.10 at 3:40 am

Orin, as to the search for citations, it was my sense that Glenn was not going to look around because he didn’t think the proposition you were pursuing was the one at issue.

Incidentally, just to report a sighting of the two issues in the wild, see Glenn’s comment #255. This contains references to a decision re. illegality — marked as issue [1], because that was the objection you first made, and this is one which you would do well to concede was mistaken or at a minimum easily susceptible to misreading. But it also hints at a decision re. defenses not directly raised by defendants, marked as issue [2]. As I remarked upthread, this is a position that Glenn sometimes seems to renounce and other times seems to maintain. But in any event he seems disinclined to research it.

Honestly, this would be so much easier if people would just acknowledge when they wrote hastily or unclearly, and concede good points made by others.

From #255:
“[1] The Court explicitly said that the surveillance was illegal. [2] As I’ve pointed you to numerous times now (and which you refuse to acknowledge), the plaintiffs, in their moving papers, raised and extensively rebutted the DOJ’s arguments as to why the NSA program was legal (i.e., they raised and refuted the Article II and AUMF argument). [1/2] The Court was required to find under Rule 56—and did explicitly find—that there were sufficient arguments submitted to justify the conclusion that the surveillance was illegal.”

“[1] Thus, your scolding of the NYT for reporting exactly what the Court said (that the surveillance was illegal), and your claim that Judge Walker made no such ruling, is totally false.””

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Anderson 04.05.10 at 3:52 am

Do you really think that judges consider only arguments that are brought before them?

As I wrote upthread, I worked for a federal judge who took precisely that position. Perhaps he was an exception.

… The notion that a plaintiff’s “raising and rebutting” issues not raised by the defendant, suffices to make those issues an implicit part of the holding, is far more risible than anything Prof. Kerr wrote. I must remember to prove the existence of Atlantis in my next brief — I can tuck it into a footnote, the other side will be unlikely to respond, and presto! if my client prevails, then Atlantis exists! Q.E.D.

301

politicalfootball 04.05.10 at 4:00 am

As I wrote upthread, I worked for a federal judge who took precisely that position. Perhaps he was an exception.

Seriously? So the plaintiff wins the space alien suit if he brings it before your judge?

302

Pinko Punko 04.05.10 at 4:05 am

Crooked Ref once again does everyone a mitzvah. Glenn argues that under “rule 56″ that the arguments of the plaintiffs met their burden to prove the surveillance was illegal. Now, in some hypothetical case, hypothetical plaintiffs my raise numerous arguments, some on point and some specious. However, one successful argument would be enough to satisfy their claim, however in such a hypothetical case perhaps we would expect the judge to note which argument satisfied the law and which ones did not.

However, on the other side, if there were any successful government claim against the plaintiffs outlined in the plaintiffs’ case, regardless of whether the defense raised the claims, or alternatively the plaintiffs were unpersuasive in their claims, the judge would not have ruled in their favor.

Where does this leave us?

303

Orin Kerr 04.05.10 at 4:45 am

Political football, Crooked Ref,

You’re about 100 comments behind, unfortunately. Initially, I thought Greenwald’s argument was that a judge has an obligation to consider all non-raised defenses when adjudicating a plaintiff’s motion for summary judgment. Greenwald then explained that this was not his argument, and that his argument was that Judge Walker had considered the defenses because they had been raised preemptively by the plaintiffs themselves, even though they were not argued by the defendant. That is, his argument was that the plaintiffs had successfully made the defenses part of the litigation by including DOJ’s White Paper and then explaining why DOJ’s White Paper was unpersuasive (effectively trying to use the 2006 White Paper as if it were a brief filed in the case).

I then asked Greenwald for support of *that* position — that a judge ruling on a plaintiff’s motion for summary judgment has before him to decide defenses not raised by the defendants but raised preemptively by the plaintiffs. That’s the issue, and Greenwald has never offered any support for it. I’m still waiting for him to do so, and I hope he will.

I should add that we all agree that Judge Walker simply never mentions these arguments at all, so Greenwald’s theory is that Walker silently rejected the claims — not even mentioning them — in what was otherwise a very detailed 45-page opinion.

304

Pinko Punko 04.05.10 at 4:47 am

Orin,

It seems that Glenn is saying that it is impossible for the DOJ’s White Paper to be held as persuasive, given the ruling went the other way.

305

Crooked Ref 04.05.10 at 4:56 am

Actually, I’m not sure I was behind at all. Whether or not Glenn has explicitly endorsed your understanding of his position, I have credited him with at least implying it — it’s what I meant in saying “defenses not directly raised by defendants” (299) and citing his discussion (255). I never took his position to be that all non-raised defenses (that is, not raised by *anyone*, as I assume you mean) were resolved on summary judgment.

I continue to think it would be appropriate for you to acknowledge error or misstatement in sometimes saying that lawfulness/legality was not resolved, but I guess that concession awaits Glenn’s citations, so I think I will turn in. Perhaps for a really, really long sleep.

306

Orin Kerr 04.05.10 at 4:58 am

As I wrote upthread, I worked for a federal judge who took precisely that position. Perhaps he was an exception.

Not in my experience. If a defendant doesn’t raise a defense, the trial court rules on the claim assuming there is no defense. There could be a perfectly valid defense, but if the defendant doesn’t raise it, no judge I know of would consider it.

That’s what makes Glenn’s claim so odd to me: His claim is that Judge Walker not only considered it but actually reached a ruling on it without ever saying so or explaining what the argument was that he was ruling on. Given that this is such a high-profile case, and Judge Walker realizes the national interest in the question, doesn’t it seem weird that he would consider a defense the defendant didn’t argue and then secretly reject it without telling anyone about it? I’ve never heard of anything like it, which is why I’m so much looking forward to Glenn’s providing the legal citations that show that this must have happened.

307

Orin Kerr 04.05.10 at 4:59 am

Pinko,

The issue is whether the issues in DOJ’s white paper were in the case.

308

Orin Kerr 04.05.10 at 5:01 am

Oh, and by “in the case,” I mean “an issue that had to be resolved at the summary judgment stage.” Judge Walker never mentioned the arguments, or included an analysis of them, so Greenwald’s argument is that they were silently resolved: I am looking for the authority to support that position.

309

Sebastian 04.05.10 at 6:05 am

“I thought this was so obviously wrong that it wasn’t worth responding to, but you seem stuck on this point. IANAL, but I disagree. It seems apparent that a judge who so ruled would be, in fact, ruling that the plaintiff had proven to the appropriate standard that the space alien stole his soul – and, moreover, that such theft entitled the plaintiff to damages.”

No, he would have ruled that procedurally the defendant did not defend the case and therefore a default judgment for $100 was entered. He most specifically would not have ruled that a space alien stole the plaintiff’s soul.

310

Glenn Greenwald 04.05.10 at 11:09 am

Anyway, it seems to me that Glenn Greenwald is the natural person to provide us with the cites that he has in mind. He is the one claiming to be an expert in civil litigation, not me, and he is the one claiming that the answer is so easy that failure to see it makes one dishonest or stupid. Given that, I’ll ask again: Glenn, please provide us with the citations you have in mind, or else just say you don’t have them or won’t share them.

(1) You’ve tried to set yourself here as some sort of Judge, directing me to run around gathering research to your satisfaction. You’re the one who publicly admonished the NYT that they reported on this case inaccurately, so your burden to provide legal citations to support your lecture — which you’ve failed to do — is at least as substantial as mine.

So where are your cases stating that a Judge is deemed not to have considered a specific argument unless he explicitly raises it in his decision and then proceeds to analyze it in writing? By your reasoning, if you fail to provide them in this comment section on demand, it means there is none and you should admit that.

(2) As I’ve explained to you, I’m not going to run around spending the day gathering cases for you on demand because I don’t believe you’re operating in good faith. You’ve repeatedly changed what you said you wanted in order to be satisfied. I don’t believe that you’ll acknowledge your error no matter how many cases I provide.

(3) Independent of case law, the Court here explicitly found “the absence of any genuine issue of material fact regarding their allegation of unlawful electronic surveillance” (pp. 2-3; emphasis added).

Judge Walker here explicitly said he found the electronic surveillance at issue to be “unlawful.” On pp. 22-23, he expressly says that among the documents submitted on the Motion were the DOJ’s January, 2006 White Paper setting forth the AUMF and Article II defenses, as well as numerous briefs addressing issues. While those documents don’t bear on the question of whether these specific plaintiffs were subjected to the surveillance, Judge Walker then explicitly says that his ruling is based on “the body of evidence submitted with plaintiffs’ motion” (p.23).

Unless you think he made a finding of illegal surveillance by randomly picking pieces of paper out of a hat, it meant that he must have considered the legal arguments made by the plaintiffs to prove the surveillance was illegal. Moreover, he was required by Rule 56 to do consider the validity of plaintiffs’ factual and legal claims before ruling in their favor — even if defendants don’t dispute them. As I cited specifically, the arguments made by plaintiffs to prove the surveillance was illegal were grounded in their refutations of the Bush DOJ’s Article II and the AUMF defenses.

It’s true that Judge Walker did not explicitly discuss them. That’s because only plaintiffs, and not defendants, discussed them. Instead, in conclusory fashion, he stated that the plaintiffs had established that the surveillance was illegal, and then focused in his opinion on the arguments that were in dispute. But cases aren’t needed to prove that what you said is wrong: Judge Walker himself said that he did exactly what you told the NYT he didn’t do: namely, find the surveillance at issue to be against the law.

(4) I probably will ask my research assistant to gather cases that state the obvious legal propositions at issue here: that (a) the grant of Summary Judgment is necessarily a judicial finding that the plaintiffs have prevailed on all the elements of their claim (which, here, includes the claim that the surveillance was illegal) and (b) such a ruling is deemed one on the merits, and would estop future litigation, not only of arguments explicitly raised by the defendants (or discussed by the court) but also of defenses the defendants could have raised.

Those are the relevant and painfully well-settled principles of Summary of Judgment that negate your claims to the NYT. I’ll have my research assistant find them on our own time. But I know it won’t do any good, because you’ll simply claim that you wanted case law for some absurd proposition that (a) isn’t what I’m arguing and (b) doesn’t exist.

But seeing how wrong you are here in your effort to defend Bush officials from the significance of this ruling requires no case law. It just requires reading what Judge Walker himself said (that the plaintiffs demonstrated the surveillance was illegal) along with the plaintiffs’ arguments along those lines (the AUMF and Article II defenses are frivolous).

Charlie Savage and Jim Risen had it exactly right, and you had it exactly wrong: this ruling means that the Bush surveillance program was illegal. Every future court will treat it as a ruling on the merits. The defendants would be collaterally estopped from trying to re-litigate those arguments, because they have been ruled upon.

311

Anatoly 04.05.10 at 1:04 pm

Heur’s #280 is sufficiently damning to make me reassess the outcome of the thread so far, which, until I had reached it, was that Kerr lost the argument and was reluctant to admit it. #280 makes it very clear that something else is going on.

However, Heur, consider that before Kerr reassered his request in a clear and unambiguous manner in #214, he presented it several times before in a different form. The whole issue revolves around the arguments for the DOJ that the plaintiffs themselves submitted and refuted. The DOJ didn’t raise any arguments, but the plaintiffs anticipated and refuted them in their submission. Let’s call these arguments-for-the-DOJ-as-articulated-by-the-plaintiffs THE ARGUMENTS. The question is: can the judge be said to have ruled on THE ARGUMENTS’ validity?

Here’s my attempt to present the exchange in a way that makes neither party explicitly dishonest:

Glenn, in #119: “Here, the plaintiffs presented a prima facie case that the Bush administration broke the law, the DOJ did nothing to refute that, and the Judge—after considering the arguments before him—ruled against the Bush administration.”

Here we’re not yet talking about THE ARGUMENTS specifically, although Glenn is going shortly to clarify that this is what he means by “the arguments”.

Orin, in #126: “Just so I understand, your view is that Judge Walker considered the arguments that the parties had not raised, and then ruled on them without discussing them or even naming them? If I understand you correctly, can you be be specific as to which arguments not raised or mentioned were rejected?”

Orin is also not addressing THE ARGUMENTS.

Glenn, in #128: “The Court didn’t explicitly discuss those arguments because the DOJ didn’t raise them.
BUT: the plaintiffs raised them by submitting to the court what the Bush administration’s arguments were (Article II and AUMF) and lengthily proving they were wrong:”

Here THE ARGUMENTS are raised explicitly for the first time. Glenn is saying here and in later comments that the judge has ruled on THE ARGUMENTS because his summary judgement necessarily validated the plaintiffs’ arguments, which included the refutation of THE ARGUMENTS. He says so clearly in #205: “Here they did so by arguing to the Court that the DOJ’s legal defenses were wrong. The Court NECESSARILY granted those arguments in fining the surveillance legal.”

Orin, in #132: “How about this: If you provide me the case citations showing me that your position is right (specifically, that a ruling for the plaintiffs means that the court considered and rejected on the merits all possible defenses not raided by the defendants), and I’d be happy to read the cases and post on this.”

This is where the trouble begins. Taken on its own, this paragraph seems to claim that Glenn said the ruling means the court rejected on the merits all possible arguments on behalf of the defendants, including those that were never made by anyone, never written down by anyone, maybe in fact are yet to be invented.

This is exactly what Glenn takes this paragraph to mean when he quotes it in #205 and rails against it.

However, in context of the whole of #132, I think it can be understood (though I won’t say it’s “clear”) that by “all possible defenses not raised by the defendants” Orin here is only talking about defenses mentioned in the briefs, and in particular THE ARGUMENTS. I think it can be understood from the rest of #132, where he e.g. cites an example where the case included several constitutional challenges to the federal sentencing guildelines, only one one was litigated and rejected, but others were not taken to have been rejected, and indeed were later argued and upheld in Booker (I don’t know what case he referred to; he named Morrison v. Olson, but must have made a mistake because that wasn’t about sentencing guidelines at all). Also, Orin is directly replying to Glenn’s introduction of THE ARGUMENTS.

It also seems very strange for someone of Kerr’s knowledge and experience to attribute to Greenwald the claim that the judge rejected on merits all possible arguments whatsoever, including those never heard, thought of, etc. There are, it seems to me, two ways to deal with this: one is to assume that he’s saying something more reasonable, but not phrasing himself clearly enough; the other is to say that he’s been exposed and is desperately trying to twist Greenwald’s words in an especially ludicrous manner. The latter position Greenwald takes up, with gusto, in #205 and below; it’s also the conclusion reached by several other commenters, it seems. I’m going with the former.

Orin, in #156: “Specifically, you say that in ruling on the motion for summary judgment, Judge Walker implicitly considered and ruled on the merits on all of the defenses that the defendants did not make. Can you post some citations for that?”

Again, on my reading, Orin is still talking about THE ARGUMENTS, while Glenn and some others take him to be talking about ANYTHING WHATSOEVER.

Orin, in #198: “The disagreement between us is about whether a decision granting summary judgment for a civil plaintiff means that the court has considered and rejected the possible defenses to liability that the defendant declined to raise. You say the answer is “yes”; my understanding has always been “no.” You claim to be an expert in civil litigation, so I just want to know the cases you are relying on for your conclusion that the answer is “yes.” “

The same thing is happening here.

Orin, in #214: “You seem to be arguing that because the plaintiffs affirmatively argued the inapplicability of the Bush Administration’s arguments before Judge Walker, Judge Walker must have considered those arguments and ruled on them even though he never actually mentioned them and the defendants did not themselves raise them.”

Ok, NOW for the first time Orin is explicitly referencing THE ARGUMENTS. He doesn’t seem to be changing his position; he seems to be reiterating his request for Glenn to provide a citation in which something like THE ARGUMENTS is later cited as having been ruled upon based on a summary judgement, even though they weren’t raised by the opposing side.

Orin, in #262: “To repeat myself, I’m just asking for legal citations to support your narrow view that by trying to argue defenses in their briefing papers, the plaintiffs brought those issues into the case such that Judge Walker’s opinion resolved them.”

Here again THE ARGUMENTS are explicitly referenced, and it’s clear that what Orin’s asking for is not what Glenn took him to be asking for in #205 and elsewhere.

After one unambiguous statement by Orin in #214, Glenn replied in #255, sticking with his interpretation: “… a proposition so obviously ludicrous—that when a Court grants Summary Judgment, it necessarily has considered and rejected every single possible argument that the non-moving party might have raised but didn’t—that it, by itself, proves your lack of good faith.”. However, Glenn’s replying to Orin’s summary #248, not #214. It’s possible that Glenn didn’t read #214 when he was replying, or didn’t notice that Orin’s wording there rules out the “ludicrous proposition” Glenn ascribes to him.

Now one way to read this would be that in #132, #156 and #198 Kerr was maliciously attributing a ridiculous claim to Greenwald; on reading #205 he understood that this just wouldn’t fly and slyly changing his wording to something more reasonable in #214 and #262. But it’s also possible that Kerr was saying the same thing all along, not realizing that his first three attempts to phrase it were ambiguous, and left a door open to interpreting them as attributing something ridiculous to Greenwald. His explicit mentioning of THE ARGUMENTS in #214 could be an attempt to make that clear after he saw Greenwald not understanding this in #205, or he might have simply phrased it better on another attempt independently.

One way to read Greenwald would be to say that he maliciously insisted on misunderstanding Kerr as saying something ridiculous, instead of engaging the more reasonable claim; and later when Kerr rephrased his claim unambiguously, maliciously ignored that rephrasing. But it’s also possible that Greenwald genuinely took Kerr to be saying something ridiculous, interpreted that as arguing in bad faith and a dishonest attempt to shift the blame on Greenwald, and later didn’t notice that Kerr changed the wording.

I think they were both writing their claims in good faith.

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Jon Weinberg 04.05.10 at 1:33 pm

Orin and Glenn,

I stumbled upon this thread late, and confess that I haven’t had the fortitude to read all 300+ comments. But based on those I have read, I don’t think the question I’m about to ask has been raised. I went back and took a look at Judge Walker’s 7/2/2008 opinion, which included this language:

It is not entirely clear whether defendants acknowledge Congress’s authority to enact FISA as the exclusive means by which the executive branch may undertake foreign intelligence surveillance in the domestic context. While their papers do not explicitly assert otherwise, defendants’ attorney in this matter stated in open court during the hearing herein held on April 23, 2008 that, while he conceded that “Congress sought to take over the field” of foreign intelligence surveillance (Doc # 452 at 29:2-3), whether the president actually had constitutional authority under Article II to order such surveillance in disregard of FISA remained an open question: “[D]oes the president have constitutional authority under Article II to authorize foreign intelligence surveillance? Several courts said that he did. Congress passed the FISA, and the issue has never really been resolved. That goes to the issue of the authority to authorize surveillance.” Id at 33:7-12. Counsel repeatedly asserted that this issue was entirely separate from the preemption inquiry relevant to the state secrets privilege and urged the court not to “conflate” the two inquiries. E g, id at 32:8-10.

To the contrary, the court believes that the two areas of executive branch activity pertaining to foreign intelligence surveillance are not distinct for purposes of this analysis as defendants’ counsel asserts. Congress appears clearly to have intended to–and did–establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.

Doesn’t this constitute a ruling on the key Art. II issue? The court said that the two questions (exclusive executive authority over wiretapping and exclusive executive authority over state secrets) were “not distinct,” and that Congress’s authority to legislative overrode both. That hardly needed to be repeated just now, notwithstanding the change of Presidential administration; it was law of the case.

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Jon Weinberg 04.05.10 at 1:36 pm

Sorry; I’m reposting with a second try at correct html.

- – – -

Orin and Glenn,

I stumbled upon this thread late, and confess that I haven’t had the fortitude to read all 300+ comments. But based on those I have read, I don’t think the question I’m about to ask has been raised. I went back and took a look at Judge Walker’s 7/2/2008 opinion, which included this language:

It is not entirely clear whether defendants acknowledge Congress’s authority to enact FISA as the exclusive means by which the executive branch may undertake foreign intelligence surveillance in the domestic context. While their papers do not explicitly assert otherwise, defendants’ attorney in this matter stated in open court during the hearing herein held on April 23, 2008 that, while he conceded that “Congress sought to take over the field” of foreign intelligence surveillance (Doc # 452 at 29:2-3), whether the president actually had constitutional authority under Article II to order such surveillance in disregard of FISA remained an open question: “[D]oes the president have constitutional authority under Article II to authorize foreign intelligence surveillance? Several courts said that he did. Congress passed the FISA, and the issue has never really been resolved. That goes to the issue of the authority to authorize surveillance.” Id at 33:7-12. Counsel repeatedly asserted that this issue was entirely separate from the preemption inquiry relevant to the state secrets privilege and urged the court not to “conflate” the two inquiries. E g, id at 32:8-10.

To the contrary, the court believes that the two areas of executive branch activity pertaining to foreign intelligence surveillance are not distinct for purposes of this analysis as defendants’ counsel asserts. Congress appears clearly to have intended to—and did—establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.

Doesn’t this constitute a ruling on the key Art. II issue? The court said that the two questions (exclusive executive authority over wiretapping and exclusive executive authority over state secrets) were “not distinct,” and that Congress’s authority to legislative overrode both. That hardly needed to be repeated just now, notwithstanding the change of Presidential administration; it was law of the case.

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Crooked Ref 04.05.10 at 1:45 pm

Yay for #311! (Acknowledging the possibility that the author is either a nattering nabob of negativism or apologist for a government of criminals, and in any event is serving broader purposes that will shortly be revealed.)

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Rich Puchalsky 04.05.10 at 2:54 pm

Yay for #311?

“There are, it seems to me, two ways to deal with this: one is to assume that he’s saying something more reasonable, but not phrasing himself clearly enough; the other is to say that he’s been exposed and is desperately trying to twist Greenwald’s words in an especially ludicrous manner.”

That is an entire, detailed comment devoted to speculation about mental states and motives. One long tale of how it could be that everyone involved is arguing in good faith. What’s missing from that?

1. Any acknowledgement that this matters.

Orin Kerr spoke about this as a public intellectual. Who cares what chain of thought caused him to mis-advise the public on this case? Does it really matter whether it was due to not phrasing himself clearly enough, or was due to purposeful twisting of words? The harm done *when he told the public the wrong thing* is the same either way.

2. Any acknowledgement that this is one of a series.

Henry wants to make this all about this one incident, because it can tail off into this he said/he said drivel about who misinterpreted whom in the comment box. But come on, people. What Greenwald was that Kerr has a history of doing this. And he does! Does anyone want to make up a long story about how Kerr might have trimmed that ACLU quote in his Senate testimony to take out the critical part where they said the Patriot Act as written was unconstitutional, or might have just trimmed 1/4 of it to save space?

Clearly what some people care about it whether a story can made under which everyone involved is respectable. But why should anyone else care about that, when this is about illegal surveillance?

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Rich Puchalsky 04.05.10 at 3:00 pm

Should be “What Greenwald *wrote* was that Kerr has a history of doing this” above.

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VV 04.05.10 at 3:12 pm

Heur #280:

Put differently, there is a clash of norms concerning the purpose of the discussion. In one case, the overriding norm is obtaining the right outcome; in the other, the overriding norm is illumination of the various sides of an issue.

This isn’t breaking new ground in any way, except in putting the two “views” on equal footing, which I don’t think is deserved, or is right, in this instance. Greenwald recognized this already in a way in 39 (forgetting about motives, and just focusing on function), and so did Rich, and in more detail Marfkrs in 287. They took a much less charitable stance than you, with which I agree. The reason is this (Marfkrs):

Ideas about the Constitution should not be treated as intellectual exercises only. It is a practical document, with clear principles relating to freedom and the protection of the powerless from the abuses of authority that every government in the history of the world has been tempted to engage in. If someone’s version of reason leads him or her to contemplate the weakening or contravention of those principles, that is not admirable or disciplined or honorable. It is misguided games-playing.
… someone needs to be shrill when intellectuals play games with surveillance, imprisonment, torture and death.

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ScentOfViolets 04.05.10 at 3:12 pm

Anatoly@311: I’m just back to see if this thread has finished thrashing, and the convulsions seem terminal (then again, it’s Monday.) I would tend to disagree that your quotation of 280 puts the ball back in play, just on heuristics. I have found has a practical matter that as time goes on and the dispute becomes murkier rather than clearer that Something Ain’t Right. By now we should have a pretty good idea of what Kerr is trying to claim, yet I think it safe to say from the responses of many people that a lot of ink has been dispersed to the enlightenment of no one. Otoh, it’s been pretty clear what Glenn has been saying from the very beginning. So unless this is typical of Kerr’s writings (entirely possible, I’m not so good at composing on the fly myself), I’m going to say that if nothing else, Glenn has been a lot straighter then Kerr.

(1) You’ve tried to set yourself here as some sort of Judge, directing me to run around gathering research to your satisfaction.

So where are your cases stating that a Judge is deemed not to have considered a specific argument unless he explicitly raises it in his decision and then proceeds to analyze it in writing? By your reasoning, if you fail to provide them in this comment section on demand, it means there is none and you should admit that.

Translation: Kerr is playing the “If you can’t make me say I’m wrong I win” game. Even though he’s the one who wrote the initial piece in the NYT, which would put the burden of proof on him.

(2) As I’ve explained to you, I’m not going to run around spending the day gathering cases for you on demand because I don’t believe you’re operating in good faith. You’ve repeatedly changed what you said you wanted in order to be satisfied. I don’t believe that you’ll acknowledge your error no matter how many cases I provide.

There’s a great Calvin and Hobbes strip that illustrates this principle. C & H are playing cowboys and Indians, and over the course of several panels we see Calvin becoming progressively annoyed as Hobbes smirks and tells him he “missed” after a fair ambush. In the final frame we see an enraged Calving emptying his imaginary six-guns into Hobbes who is standing no more than two feet away from Hobbes. Hobbe’s response? “My, what a lousy shot you are.”

I don’t know on what planet where by any stretch of the imagination this sort of behaviour can be deemed civil. Indeed, reading over the thread, I see many people who seemed initially to be favorably disposed to Henry and Kerr and who are now somewhat vexed that the two refuse to admit even to very obvious errors, errors which moreover don’t hurt their case all that much. Even, in fact, as they maintain that H & K are still basically right. Rather ironic, given that at the very top of this thread, we see Henry accusing Glenn of being a roughneck.

In fact, this behaviour seems to be the real impetus behind a missive that has generated over 300 posts. I sense a lot of frustration at the use of these sorts of tactics, the “If you can’t make me say I’m wrong I win” ploy, the refusal to play by the rules wherein the burden of proof is on the party making the claim (in this case, Kerr), and of course, the absolute steadfast resolve to never admit to making a mistake. That sort of thing is absolutely poisonous to any academic discourse.

Then again, for some people, maybe that’s the point.

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VV 04.05.10 at 3:14 pm

Also, what Rich said just now.

320

Henry 04.05.10 at 3:29 pm

Henry wants to make this all about this one incident, because it can tail off into this he said/he said drivel about who misinterpreted whom in the comment box. But come on, people.

Rich, please, come off it. If you care to go back and _read_, you’ll actually notice that I suggested to people about 120 comments ago that this was fundamentally not a particularly interesting issue, and that maybe people could move on to talking about something else. I was then, as it happens, told by jdw that I was trying to change the issue because Orin Kerr was losing. Now, perhaps when I said “I really can’t believe that we are still debating the non-issue of the ruling,” it was a cunning exercise in reverse psychology, which successfully headfaked jdw and others into keeping on discussing it. Or perhaps you really need to really calm down a little bit about my purported Machiavellian manipulations of the discussion here. Kerr may have some very considerable difficulty in being both a lying hack for the left wing and a lying hack for the right wing simultaneously. But I would suggest that it is _even harder_ for me to be trying to manipulate the conversation by making everyone talk about the topic, while simultaneously trying to manipulate the conversation by making everyone not talk about the topic. While also (for jdw’s benefit) simultaneously arguing that blogging is rotten because it doesn’t match up to deliberative standards, and that deliberative standards are rotten, because they don’t capture what is interesting and good about blogging. “And look! I can hop up and down on the ball! But that is not all! Oh, no. That is not all…”

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Orin Kerr 04.05.10 at 3:53 pm

Glenn,

I look forward to reading the cases you will be providing. I think you’ll agree that we’re debating a straightforward legal question, and that the answer to our legal question is in the cases. So on to the cases! I look forward to reading them as soon as you provide them to back up your claim.

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Sebastian 04.05.10 at 3:56 pm

311 seems to be an excellent summary of the way it went off the rails here in the thread, and it might offer some insight to how it went off the rails from the beginning.

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Rich Puchalsky 04.05.10 at 4:17 pm

Henry, I think that you’re giving your obfuscatory powers too little credit. After all, all you have to do is casually provide bits like “Kerr may have some very considerable difficulty in being both a lying hack for the left wing and a lying hack for the right wing simultaneously” and you can gum up any number of conversations at once. I mean, Greenwald explicitly said (#255): “I don’t think you’re an apologist for Bush radicalism because it produces personal benefits for you. I think you do it because you actually believe in the rightness of most of what they did. You seem to think that’s better; I think it’s worse.” But to you this becomes, of course, that Kerr is being called a lying hack. Isn’t it convenient for you to argue against the little people inside your own head that say exactly what you think they should say?

As it happens, I think that jdw was right. You were trying to change the issue because Kerr was losing. Yet you were also trying to gum up that issue by refusing to acknowledge that Kerr got it wrong in any important sense, and, as late as comment #272, writing: “Glenn – again, this is ducking the point. I don’t recall Kerr ever voicing an opinion as to whether or not the plaintiffs in al-Marri deserved relief. The point – and I will keep on pushing it – is that your specific accusation that Kerr was defending monstrous acts was predicated exactly on the claim to authority” and asking him to engage that once again.

So, yes, you can toss in everything in the kitchen sink, trying everything at random but avoiding anything that would resolve any issue. In this specific instance, whenever you go back to whether the phrase “sometimes Bush apologist” was accurate — because you’ve said this was about mischaracterization — you’ve steadfastly refuse to consider that there’s more than this one case under consideration.

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Orin Kerr 04.05.10 at 4:19 pm

Figuring that Glenn isn’t going to provide cases, I went back to Westlaw and found some. One fruitful place to look is on the standards for claim preclusion, which rely on whether an issue below was “actually litigated.” Here’s the ALI’s Restatement of Judgements, Section § 27 cmt. e at 256-57 (1982), which seems to be a widely relied upon authority in the federal caselaw

************
An issue is not actually litigated if the defendant might have interposed it as an affirmative defense but failed to do so; nor is it actually litigated if it is raised by a material allegation of a party’s pleading but is admitted (explicitly or by virtue of a failure to deny) in a responsive pleading;
************

In the Walker case, the plaintiffs raised the Bush Administration arguments in their pleadings, but the defendants failed to make a response (which I would assume counts as a failure to deny).

For an example of a court applying this, see United States v. Botefuhr, 309 F.3d 1263 (10th Cir. 2002):

*************

The critical issue is whether the prior stipulation in the estate proceeding on the value of Hondo stock constitutes an “adjudication on the merits.” In the issue preclusion context, the underlying issue must have been adjudicated on the merits. See Jones v. United States, 466 F.2d 131, 133 (10th Cir.1972) (explaining that issue preclusion “is only applicable when an issue identical to that presented in the second suit has been raised and fully adjudicated under identical and inseparable relevant facts”). “Generally speaking, when a particular fact is established not by judicial resolution but by stipulation of the parties, that fact has not been ‘actually litigated’ and thus is not a proper candidate for issue preclusion.” Otherson v. Dep’t of Justice, 711 F.2d 267, 274 (D.C.Cir.1983); see also Kane v. Town of Harpswell, 254 F.3d 325, 329 (1st Cir.2001). This is particularly so when the stipulation does not “manifest an intent to be bound in a subsequent action.” Red Lake Band v. United States, 221 Ct.Cl. 325, 607 F.2d 930, 934 (1979). As the Restatement (Second) of Judgments states:

A judgment is not conclusive in a subsequent action as to issues which might have been but were not litigated and determined in the prior action.

….

An issue is not actually litigated if the defendant might have interposed it as an affirmative defense but failed to do so; nor is it actually litigated if it is raised by a material allegation of a party’s pleading but is admitted (explicitly or by virtue of a failure to deny) in a responsive pleading; nor it is actually litigated if it is raised in an allegation by one party and is admitted by the other before evidence on the issue is adduced at trial; nor is it actually litigated if it is the subject of a stipulation between the parties. A stipulation may, however, be binding in a subsequent action between the parties if the parties have manifested an intention to that effect.

Restatement (Second) of Judgments § 27 cmt. e at 256-57 (1982) (emphasis added),

*************

This is just a start, of course, but at least it’s a start. And of course, Glenn, I’d be interested in your response to the Restatement section.

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LizardBreath 04.05.10 at 4:41 pm

There’s an interesting question there — are the Bush Administration arguments we’re talking about literally ‘affirmative defenses’, that are waived if not raised? It’s not clear to me that they are (it’s also not clear to me that they aren’t).

326

Henry 04.05.10 at 4:48 pm

Rich – I really think you’re losing your sense of proportion here. It’s demonstrably true that I’ve hardly addressed this case at all throughout the entire discussion. When I’ve been pushing Glenn Greenwald, it’s on an entirely different discussion – how Greenwald characterized Kerr’s views on _Al Marri_ without really referring to what those views were. I do hope you realize that _Al Marri_ is an entirely different case and an entirely different controversy altogether. I honestly suggest that you should calm down a little bit on this. I am not out to squash discussion. I am not out to distract deliberately. If you think I am, there is obviously little I can do to persuade you – but the facts really don’t support what you are arguing. I haven’t said anything that would keep people discussing the “one incident” that you claim I am trying to keep people discussing.

327

Yarrow 04.05.10 at 4:52 pm

I hate to continue 313’s deplorable trend of actually looking at what Judge Walker wrote, but alas, the temptation is too great.

Robert Mueller was sued both personally and in his capacity as Director of the FBI. The decision says “The court on its own motion dismisses all claims against defendant FBI Director Robert Mueller in his individual capacity” even though

In a footnote to their moving papers, plaintiffs merely note that their motion does not “address the personal liability of defendant [Mueller], who, by agreement of the parties, has not yet made an appearance in this action.”

So here’s a judge (in this very case!) capable of acting on a point of law that the defendants refused to address.

328

LizardBreath 04.05.10 at 4:54 pm

but the defendants failed to make a response (which I would assume counts as a failure to deny).

And this is also interesting — do I understand correctly that you’re arguing that Judge Walker didn’t rule on the illegality of the surveillance program because the Justice Department as a matter of law admitted that illegality by failing to address it in their papers? That seems worth noting in itself if true, but also a little off.

Here I’m speaking off the cuff — I’d need to pin down exactly what’s at issue and do some work thinking it through — but isn’t there a distinction that has to be made here between matters of fact and matters of law? I’d agree that the DOJ ‘admitted’ by not denying that, as a matter of fact, there were no FISA warrants covering the surveillance at issue. That they needed warrants for the surveillance to have been lawful, on the other hand, is a purely legal question, and not, I think, one that can be ‘admitted’ by failure to deny in the same way.

329

Steve LaBonne 04.05.10 at 4:57 pm

I really think you’re losing your sense of proportion here.

I just want to make the totally content-free, snarky, and probably obnoxious observation that it’s funny reading those words when they’re part of comment # 326.

Back to your originally scheduled programming.

330

Henry 04.05.10 at 5:01 pm

bq. I just want to make the totally content-free, snarky, and probably obnoxious observation that it’s funny reading those words when they’re part of comment # 326.

A hit. A palpable hit.

331

Orin Kerr 04.05.10 at 5:05 pm

Lizard Breath,

My understanding is that the Obama Adminstration refused to litigate the lawfulness of the program: They focused only on whether the court could reach the conclusion that there was warrantless electronic surveillance in that particular case As soon as Judge Walker concluded that there was warrantless electronic surveillance, he had a prima facie case for the plaintiffs, and he ruled for the plaintiffs without considering whether “the program” was legal or illegal because DOJ wasn’t even arguing that the program was legal. My point is that Judge Walked didn’t consider the lawfuless of “the program,” but rather just asked whether the plaintiffs had established that they were subject to “electronic surveillance” and that no warrant existed.

332

LizardBreath 04.05.10 at 5:19 pm

My point is that Judge Walked didn’t consider the lawfuless of “the program,” but rather just asked whether the plaintiffs had established that they were subject to “electronic surveillance” and that no warrant existed.

Well, sure. And my point from the beginning of the thread is that Judge Walker couldn’t have granted relief to plaintiffs without holding that electronic surveillance without a warrant is unlawful — I can’t follow you when you distinguish that holding from a holding that “the program” (which consists of warrantless electronic surveillance) is unlawful.

Your argument would make sense to me if the Bush Administration arguments were literally an affirmative defense like a statute of limitations defense; under those circumstances, the DOJ could waive its defense by not raising it, without any implication as to the validity of the defense if the DOJ had raised it.

But this isn’t that situation, as I understand it — the Bush administration arguments aren’t that there is some affirmative defense to liability under FISA, but that FISA isn’t properly applicable at all to the surveillance in question. And that issue was decided by Judge Walker; he couldn’t have granted the relief he did without holding that FISA was applicable.

333

Pinko Punko 04.05.10 at 5:23 pm

If establishment of a lack of warrant and demonstration of the existence of electronic surveillance are enough to find that electronic surveillance was illegal, how would it be possible for a program based on warrantless electronic surveillance to be legal? Meaning, would this decision hold on all subsequent challenges to electronic surveillance under question? Is this Greenwald’s argument RE: the legality of the program?

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LizardBreath 04.05.10 at 5:34 pm

If establishment of a lack of warrant and demonstration of the existence of electronic surveillance are enough to find that electronic surveillance was illegal, how would it be possible for a program based on warrantless electronic surveillance to be legal?

Wouldn’t we all like to know. Seriously, this conversation is complicated a great deal by the fact that (as everyone who’s said anything about it in this thread agrees) the arguments for the legality of the program are bad ones.

335

Rich Puchalsky 04.05.10 at 6:43 pm

“I do hope you realize that Al Marri is an entirely different case and an entirely different controversy altogether. “

Ah, I see what happened. Annoyed by your unwillingness to consider that the accuracy of Greenwald’s description didn’t depend on the most recent contretemps, and further annoyed by your n+1 repetition of the claim “people are calling Kerr a lying hack” despite all evidence to the contrary, I went too quickly and quoted from one your comments about a different case.

That was indeed an error of mine. There might as well be one plain admission of error in this thread.

336

roac 04.05.10 at 7:16 pm

“I thought this was so obviously wrong that it wasn’t worth responding to, but you seem stuck on this point. IANAL, but I disagree. It seems apparent that a judge who so ruled would be, in fact, ruling that the plaintiff had proven to the appropriate standard that the space alien stole his soul – and, moreover, that such theft entitled the plaintiff to damages.”

No, he would have ruled that procedurally the defendant did not defend the case and therefore a default judgment for $100 was entered. He most specifically would not have ruled that a space alien stole the plaintiff’s soul.

It was a long way upthread, so I will repeat my explanation of how the Federal Rules treat default situations (Rule 55).

To get the court to enter a default against a party, you merely have to show that the party was served with process and did not respond to the complaint (or do something else required by the rules) by the prescribed deadline.

To get a default judgment, under rule 55(d), you actually have to prove the legal and factual elements of your cause of action to the judge’s satisfaction. In the typical default case, this is just a matter of producing documents to show that the defendant promised to pay you money and didn’t; the court will then enter a default judgment ordering the defendant to pay. (Collecting the judgment is something else; frequently the defendant has defaulted because he thinks he has no money that you can get your hands on.)

The claim that someone stole your soul, however, is the opposite of run-of-the mill. You would have to put on evidence to show that the defendant did in fact steal your soul — and what would that be? You would also have to demonstrate that stealing someone’s soul gives rise to a cause of action: either because it violates some statute, or because the English common law recognized the tort of soul-stealing as actionable. I doubt very much that either is true. Hence the whole hypothetical fails for unreality.

(I said nothing about the space alien part, because if it were a tort to steal someone’s soul, the defendant’s liability wouldn’t depend on whether he is a space alien or an earthling. (Unless of course he is an accredited representative of Omicron Persei 8, in which case he may be entitled to diplomatic immunity.) Fact-finding by a court is legally operative only as to material facts. anything the judge said about the defendant’s extra terrestrial origin vel non would therefore be dictum.)

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roac 04.05.10 at 7:17 pm

Second paragraph of previous post was part of quote. Preview misled me.

338

Orin Kerr 04.05.10 at 8:40 pm

Here are some cases applying the Restatement of Judgments standard I pointed out above:

City of Sheboygan v. Nytsch, 296 Wis.2d 73, 722 N.W.2d 626 (Wis.App. 2006) (question of probable cause not “actually litigated” in trial court because “For whatever reason, the City chose not to contest the question of probable cause to arrest other than to make the blanket statement that it opposed Nytsch’s motion to vacate the administrative suspension,” such that “the court then did not have the benefit of deciding the issue in an adversarial context,” and concluding that “Because the question of probable cause to arrest was not “actually litigated,” the City is not precluded from litigating that issue on the merits.”)

Winnebago Industries v. Haverly, 727 N.W.2d 567 (Iowa 2007) (employer’s concession of liability in prior proceeding does not preclude litigation of issue because it was not “actually litigated” due to concession of liability).

State v. Bacon Const. Co., Inc. 2008 WL 5511225 (Conn. Super. 2008) (record shows that defense not raised by defendant was not “actually litigated”).

339

Orin Kerr 04.05.10 at 8:46 pm

If establishment of a lack of warrant and demonstration of the existence of electronic surveillance are enough to find that electronic surveillance was illegal, how would it be possible for a program based on warrantless electronic surveillance to be legal?

There are two ways. First, the statute could be unconstitutional; second, there could be an exception “as authorized by law” allowing the warrantless surveillance. But if DOJ isn’t going to raise these defenses, then a court isn’t going to consider them.

340

Orin Kerr 04.05.10 at 9:03 pm

But this isn’t that situation, as I understand it—the Bush administration arguments aren’t that there is some affirmative defense to liability under FISA, but that FISA isn’t properly applicable at all to the surveillance in question.

The Bush Arguments were 1) that FISA was unconstitutional as applied to the program, which I would think would be an affirmative defense and 2) that the AUMF was a statutory defense to liability under the “as authorized by statute” exception. Cf. Hamdi v. Rumsfeld (interpreting the AUMF in the same way to allow detention).

More broadly, is any one familiar with a legal decision in which an issue was actually litigated and resolved on the merits by the court but never mentioned by it?

341

politicalfootball 04.05.10 at 9:19 pm

Hence the whole hypothetical fails for unreality.

Well, yes, a judge would not have made such a ruling. But if he did, we know what it would have meant – more or less the opposite of what Kerr said. It amuses me now to see Kerr (in 303) try to explain that the accuracy of his language doesn’t matter because what he was saying was completely irrelevant.

And, of course, in Henry’s world, Kerr is right about this. Why focus on the accuracy of the red herrings, when they are, after all, red herrings? And why should we fret about red herrings when there are so many interesting things we could be talking about?

I guess it just depends on what you think the subject matter of the conversation is. Originally, the conversation was about whether it was appropriate for Greenwald to suggest that Kerr argues in bad faith. I’ve tried to stick to that topic.

342

LizardBreath 04.05.10 at 9:22 pm

unconstitutional as applied to the program, which I would think would be an affirmative defense

I don’t think I’ve ever seen the question of whether a statute is constitutional referred to as an affirmative defense before — it’s certainly not in the Rule 8(c)(1) list of affirmative defenses. Not that that list is absolutely exhaustive, but if unconstitutionality were an affirmative defense, I’d think it would have made it on the list.

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LizardBreath 04.05.10 at 9:47 pm

that the AUMF was a statutory defense to liability under the “as authorized by statute” exception.

Again, while it’s certainly conventional to use ‘defense’ to mean ‘any legal argument that means the defendant isn’t liable’ (and for the non-lawyers, when I say ‘conventional’ I mean it literally; everyone uses the word that way), this isn’t an affirmative defense. It’s an argument that someone reading FISA to create liability for warrantless wiretapping that can be construed to relate to the AUMF has misread FISA — that FISA does not intend to create liability for warrantless wiretapping that’s authorized by another statute, and that the AUMF authorizes wireless wiretapping.

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Martin Bento 04.05.10 at 9:49 pm

Does the quote from the opinion in 313 invalidate the premise of Kerr’s argument anyway? The defendant may not have argued the point on paper, but he did bring it up in open discussion, and the judge explicitly ruled that FISA overrules executive branch authority.

“Congress appears clearly to have intended to—and did—establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”

Doesn’t “FISA limits the power of the executive branch to conduct such activities ” and acknowledgement that FISA is “the exclusive means for foreign intelligence surveillance activities to be conducted” mean that the AUMF cannot prevail over FISA in this matter? “Whatever powers the executive otherwise might have had” – isn’t that a reference to claims of powers outside or overruling FISA made by the executive?

345

LizardBreath 04.05.10 at 9:58 pm

344: I have to admit that I haven’t read the whole 2008 opinion (or if I did when it came out, I don’t recall it), but if the quote says in context what it looks like it does, yes, you’re right, it’s at the least proof that Judge Walker considered and rejected those arguments.

346

LFC 04.05.10 at 10:00 pm

Kerr at 339 says that there are 2 ways for the “program” to be found legal even when the warrantless electronic surveillance in this case is illegal: (1) the statute (I guess he means the FISA statute?) could be found unconstitutional (as applied to the program); (2) the program could be found to have been authorized by the congressional Authorization to Use Military Force. (I hope I have got this accurate.)

Assuming for the sake of argument that this is correct — and I don’t know that it is, but assuming it is — then I think it was still misleading of Kerr to tell the NYT (as he apparently did) that the court did not find the program unlawful. Misleading b/c it gives the ordinary reader of the newspaper, who probably knows very little or nothing of the legal intricacies involved, a misleading impression — namely, that the court did not find anything wrong with the warrantless surveillance. I understand that may not have been at all what Kerr meant to convey when he said what he said, but that is what the ordinary reader likely would take from the remark.

In other words, you can say something to a newspaper that may be technically correct but can still be highly misleading to an ordinary reader.

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LFC 04.05.10 at 10:14 pm

Correction: I guess he didn’t say it to the NYT, he said it in his blog post criticizing the NYT article. But either way, the point stands. It can be both technically correct and misleading.

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piglet 04.05.10 at 10:17 pm

Thanks to roac 336 to clarify something that should be obvious and uncontroversial at least to he learned members of the law profession. If I may add, I believe that the plaintiff would also have to name the defendant and prove service of court documents, which might be anther obstacle to getting a default judgment against a space alien. Which just is to say that Kerr has made a fool of himself by asserting a patently false claim about legal procedure. Reading some of his statements, it might be that the patently false claim isn’t the one he really wanted to make but nevertheless he made it.

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LizardBreath 04.05.10 at 10:22 pm

Here’s the 2008 opinion for anyone who’s still reading.

346: I’d say that Kerr’s blog post wasn’t technically correct regardless of what he’s said in this thread. Everything he’s said in this thread comes down to saying that if the DOJ had raised the issues he identifies in 339, the court might not have found the program unlawful, and so those issues were never decided. That’s not the same as saying that, in the world as it is, where the DOJ didn’t raise those issues, the court didn’t find the program unlawful. The court did find the program unlawful, whatever it might have done in a counterfactual world where the DOJ had litigated differently.

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Pinko Punko 04.05.10 at 10:27 pm

LB,

I think there are a lot of people still reading because I think we, perhaps through attrition are getting to the dark hearts of the arguments, and THE ARGUMENTS.

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piglet 04.05.10 at 11:12 pm

“What do you make of the civil commitment laws that allow for the detention of U.S. citizens on U.S. soil without criminal charges if they are deemed dangerous to themselves or others because they are mentally ill or sexual predators?”

That point has been discussed in a few comments but I think it deserves some more since it seems to be characteristic for Kerr’s style of argument (and let me say in passing that I am among those who have never before reading this thread heard of either Kerr or Greenwald).

First, if it hasn’t been mentioned yet let’s point out the obvious: civil commitment laws are laws. I may expose myself as a hopeless layman by pointing out, and taking literally, the words of the constitution that no person shall “be deprived of life, liberty, or property, without due process of law”. There are no US laws that authorize detention without trial of individuals designated as terrorist suspects. The UK actually has those laws and they have been found to be in violation of the ECHR as far as I know but I’m not sure how the story continued – somebody got an update?

Second, do some of you remember how, when Guantanamo abuse and torture became widely known, it was pointed out that actually, abuse at least as bad is rampant within the civil US prison system? I don’t think anybody meant this as a defense of Guantanamo though. But the fact remains that Kerr has a point when he draws this particular parallel. There is little doubt that the kind of abuse of power that happens with respect to terrorist suspects is happening frequently within the civilian system (for a random citation, see http://www.law.virginia.edu/html/news/2006_spr/perlin.htm) and maybe the existence of that civilian abuse is part of why the US public is so totally oblivious to the abuse inflicted on Muslim foreigners. I think it is fair to say that US detention practices are among the more barbaric worldwide – not coincidentally the US is the world leader in imprisoning its own population – and legal scholars like Kerr have a point when asking why the same barbarian standards that for various reasons are routinely applied to Americans shouldn’t be applied to terrorist suspects of Arab origin. Ok I guess this is not the “legal” argument he intended to make but it is the one that matters in the real world and he made his scholarly contribution to it in his own “legal positivist” way and by doing so he did precisely what was expected of him.

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Orin Kerr 04.05.10 at 11:29 pm

I don’t think I’ve ever seen the question of whether a statute is constitutional referred to as an affirmative defense before—it’s certainly not in the Rule 8©(1) list of affirmative defenses. Not that that list is absolutely exhaustive, but if unconstitutionality were an affirmative defense, I’d think it would have made it on the list.

I’ve seen cases in which challenges to constitutionality were labeled as affirmative defenses. I don’t know if that is common, though. Nonetheless, it seems pretty clear that if you don’t raise a defense to liability like a statutory exception or the unconstitutionality of the statute, then such defenses are not in play.

BTW, did anyone else unearth any good cases on this issue? I found the few cited above, but I don’t know if anyone else has looked into this as well. We’ll see what Glenn Greenwald’s research assistant comes up with eventually, but until then there’s no reason we can’t look for cases ourselves.

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Pinko Punko 04.06.10 at 12:17 am

Does it not seem slightly cynical that an expressly clear decades old statute (FISA) can be so easily disregarded with specious or tendentious claims of unconstitutionality? Our system of government seems exceedingly fragile in the face of shoot first/answer questions later Executive Branch disregard of statute.

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jeer9 04.06.10 at 12:33 am

To work, everyone. We must find a life raft to support Prof. Kerr before he drowns. He believes he can tread water long enough, clinging to the various bits of debris that remain of his argument, until the man who has tossed him overboard returns to rescue him. C’mon, everyone! Remain positive. We can make it out of this thread yet. I … I think I see a ship on the horizon.

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Orin Kerr 04.06.10 at 1:06 am

Jeer,

I appreciate your concern with me, but so far it looks to me like the caselaw goes my way, not Glenn’s. Of course, that might change when Glenn’s research assistant provides us with the cases Glenn has in mind to support his position — we’ll have to wait and see. Either way, I hope you’ll agree that our goal is to find the answer in the law, whatever that answer may be.

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ScentOfViolets 04.06.10 at 1:14 am

I appreciate your concern with me, but so far it looks to me like the caselaw goes my way, not Glenn’s.

Do you think that anyone believes you will ever say anything else or otherwise admit you’re wrong in any significant detail? If I were you, I’d be ashamed and humiliated to have more than one or two cranks think that of me.

But then again, you’re not me.

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Cranky Observer 04.06.10 at 1:15 am

> Either way, I hope you’ll agree that our goal is to find the answer
> in the law, whatever that answer may be.

As opposed to the goal of indicting and prosecuting the people who attempted to make torture and disappearance integral features of American government and society.

Cranky

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Timothy Burke 04.06.10 at 1:21 am

I have to say, Orin, that it would be a good deal more reassuring if you could find it in yourself to say on this issue: “Look, the law says one thing, and my first question professionally is to worry about that; what is right otherwise is a different matter, and on this issue, the law is an ass.” IANAL, so getting into what the law says is a different thing, but if the law says what you say it says (and I’m not at all convinced, reading this discussion), the law is bad. It helps to say so.

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Orin Kerr 04.06.10 at 1:44 am

I have to say, Orin, that it would be a good deal more reassuring if you could find it in yourself to say on this issue: “Look, the law says one thing, and my first question professionally is to worry about that; what is right otherwise is a different matter, and on this issue, the law is an ass.” IANAL, so getting into what the law says is a different thing, but if the law says what you say it says (and I’m not at all convinced, reading this discussion), the law is bad. It helps to say so.

Given that we’re talking about a fairly arcane question of civil procedure — whether a plaintiff can put forward a defense and force a court to adjudicate the defense when the defendant does not want to assert the defense itself — I don’t really have strong feelings about it. It really depends on your views of collateral estoppel and res judicata doctrines, which have nothing at all to do with surveillance, detention, torture, etc.

But I would make your point categorically, and strongly: THE QUESTION OF WHAT I THINK THE LAW IS, AND WHAT I THINK THE LAW SHOULD BE, ARE COMPLETELY UNRELATED. Asserting that the law is X has as much relevance to what the law should be as the price of tea in China. So yes, often the law is an ass. Sometimes it is an ass in letting the government do bad things; sometimes it is an ass in restricting the government from doing good things. Often I really don’t know if the law is an ass, as the issues are too complex to resolve without a deeper understanding of empirical questions that as an outsider I just don’t know. But the broader point is that what the law is and what it should be are completely unrelated to each other.

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roac 04.06.10 at 1:49 am

In fairness to Prof. Kerr, it is certainly true that the precedential value of a decision can depend somewhat on the quality of the advocacy on the losing side. The courts face an enormous volume of “pro se” litigation (cases brought by plaintiffs without lawyers). The great majority of these cases obviously have no possible merit, and some make claims not a lot different from “space aliens stole my soul.” Judges can’t just say “Plaintiff is transparently a paranoid schizophrenic”; they have to come up with “legal “justifications for throwing out the cases. Without professional lawyering to keep them out of trouble, judges can and do commit howlers that a first-year student could avoid by spending 10 minutes on Westlaw. In theory such a holding could be cited as precedent — though in practice I have not seen this happen.

BTW I have not seen anyone make the obvious point that Judge Walker’s decisi0n is not binding on anyone, not even other judges in the N.D. Cal. (Unlike Court of Appeals decisions, which have to be followed not only by the district courts, but by all subsequent appellate panels in the circuit.) So the question of its value as precedent remains open, and if another case like this comes up and the government chooses to fight, the arguments in this thread will presumably be recapitulated in court.

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Orin Kerr 04.06.10 at 1:57 am

Do you think that anyone believes you will ever say anything else or otherwise admit you’re wrong in any significant detail?

Yes, I do. I do this often, actually: If you read the Volokh Conspiracy, or my academic writing, you would know that. Indeed, I recently wrote an article arguing that my past articles was wrong. See Fourth Amendment Seizures of Computer Data, Yale Law Journal (Jan 2010).

If I were you, I’d be ashamed and humiliated to have more than one or two cranks think that of me.

If you participate in debates about controversial topics, it goes without saying that “more than one or two cranks” will think you are just an awful, terrible person. That’s the reality of blogging on controversial topics. In my view, then, the question is not whether some people will think you are awful, a hack, etc., but *which* people will think that.

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piglet 04.06.10 at 2:01 am

“The courts face an enormous volume of “pro se” litigation (cases brought by plaintiffs without lawyers). The great majority of these cases obviously have no possible merit”

I don’t think this is “obviously” so. Their chances of prevailing may be scant but that is not necessarily for lack of merit.

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roac 04.06.10 at 2:06 am

I said “the great majority,” and I stand by that. I review all new federal court decisions in my specialty every day. Once in a while, I see one that makes me think plaintiff should get a hearing. But not often. (In such a case, it is not unusual for the judge to find the plaintiff a lawyer.)

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piglet 04.06.10 at 2:28 am

Is your point that those who don’t have a lawyer are “obviously” more likely to be without merit than those with a lawyer? This appears implausible to me but I don’t have strong opinions about this…

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beamish 04.06.10 at 2:41 am

In my experience, there are people who think I am fair and honest; there are people who think Glenn Greenwald is fair and honest; but there is no one who thinks both of us are fair and honest. Given that, I don’t expect anyone who believes Greenwald’s claims to be open to changing their minds.

I think you’re both fair and honest! But I haven’t read through the thread. Also: LizardBreath is the fairest and honestest.

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ScentOfViolets 04.06.10 at 2:48 am

If you participate in debates about controversial topics, it goes without saying that “more than one or two cranks” will think you are just an awful, terrible person. That’s the reality of blogging on controversial topics. In my view, then, the question is not whether some people will think you are awful, a hack, etc., but which people will think that.

Excellent! An opportunity for you to admit error. I did not say that “more than one or two cranks” are bound to think that you’re an awful, terrible person because you’re blogging on a controversial topic.

I said that people have gotten the impression that you refuse to play by the rules and that you refuse to admit that you’re wrong when everyone can see that you are – even about what are arguably relatively unimportant, tangential details. That’s a completely different matter altogether, and goes to academic integrity, honesty, yadda yadda.

You have , in short, mischaracterized what I wrote in a manner which – coincidentally I’m sure – just happens to benefit you. So how about owning up to your mistake now?

Fwiw, like a lot of other people, I took a neutral position regarding your supposed tactics for the good and sufficient reason that I didn’t recall hearing about you before, so this is hardly a matter of partisan tribal identification. I’ m also a mathematician, and, uh, as a tribe, we’re not too keen on this sort of behaviour.

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Henry 04.06.10 at 3:03 am

ScentofViolets – without getting into the merits , I’ll just observe that in my personal experience I have found that you not infrequently greet attempts to figure out your position as gross mischaracterizations, personal attacks etc. To the point that I’ve given up wanting to argue with you. This may well be some failure of imagination on my part. Your part in the dialogue in this thread has been in large part “a recapitulation of this one”:http://crookedtimber.org/2009/02/26/netroots-lefties/. There may be a “there” there, but it is not a there that I have any great interest in figuring out anymore. No doubt the frustration is mutual.

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Robert Halford 04.06.10 at 3:39 am

I have no idea why I’m getting into this mess, but I can’t, for the life of me, figure out why Orin Kerr, who is not an idiot, won’t admit that his original post on the Volokh Conspiracy was clearly and obviously wrong, and wrong in a way that is obvious to any competent lawyer. Here is what he said:

“As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim. “

That was just wrong. Not arguably wrong, not something that could have been phrased better, not a minor ambiguity — wrong. Judge Walker’s decision very clearly and explicitly did find that the program was “unlawful.” He had to, in order to issue his judgment. Moreover, the case was not “over” once the state secrets privilege claim was rejected. Those are two legal claims that are incorrect as a matter of law. The plaintiffs had to put on a prima facie case that the program was unlawful, and Judge Walker (who, by the way, is not a judge to take this kind of thing lightly) had to accept the argument. I’m not saying anything other people haven’t said in this thread already, but it is completely baffling why Kerr won’t just admit that he is wrong on this point and move on. Just as a matter of rhetoric, it would make his subsequent points a lot more persuasive.

Sometimes there are clear questions of law, and sometimes lawyers get them wrong, particularly in blog posts. No big deal. Just stand up and admit it.

(Kerr’s subsequent legal musings aren’t wrong, exactly, but seem to me to be wantonly confusing issue preclusion (collateral estoppel) with claim preclusion (res judicata). There is a final, binding, and preclusive ruling that the program was unlawful, and that claim has been resolved against the government. That’s claim preclusion. But since specific affirmative defenses were not litigated by the government at trial, issue preclusion may not attach in subsequent cases against the government, though that question may be somewhat complicated).

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Robert Halford 04.06.10 at 3:51 am

And, while “disingenuous” is too strong, I think it is extremely misleading to cite cases that stand for the proposition that issue preclusion does not attach when an affirmative defense has not been fully argued for the proposition that the issue of whether the program was lawful in this case has been definitively adjudicated, and adjudicated against the government. There was an adjudication of the lawfulness of the program, and that adjudication went against the government.

I agree that, because the government didn’t argue the issue, it’s unlikely that the determination on the constitutional question of legality will have a preclusive effect in other cases, but that’s not the question that Kerr purports to be answering — “adjudication” and “collateral estoppel” do not mean the same things.

(I apologize a bit for the tone here, but, as I say, I really can’t understand how Kerr can purport to be arguing in good faith when he won’t just admit to his — not the most important thing in the world, but still pretty important — clear legal error.)

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ScentOfViolets 04.06.10 at 3:52 am

Sigh. Henry, I have no idea why you say things like this; it certainly doesn’t have any bearing that I can see on the discussion. And what about that “civility” we’re all supposed to evince? Or are the Calvinball rules such that people like me have to be civil, and you don’t (assuming that I’m being uncivil, rather than simply pointing out that my words have been distorted.)

ScentofViolets – without getting into the merits , I’ll just observe that in my personal experience I have found that you not infrequently greet attempts to figure out your position as gross mischaracterizations, personal attacks etc.

You “don’t want to get into the merits”, but you’ll make a few accusations anyway? This reads like bit of bile, not like anything reasoned, considered . . . or on point. Kerr has just mischaracterized what I have said, and I explained why, and anyone with two eyes in their head and functioning scroll capability can go back up and check.

Now, did I say that having an opinion on a controversial subject will bring forth accusations of bad character? Or did I say that never admitting you’re wrong, even on relatively inconsequential matters will make people look at you cockeyed?

This isn’t a tough question, not an abstruse point of law or a fine honing and parsing of the grammar. Please don’t make even this into a partisan knock-down drag-out affair.

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Rich Puchalsky 04.06.10 at 4:27 am

“Given that we’re talking about a fairly arcane question of civil procedure—whether a plaintiff can put forward a defense and force a court to adjudicate the defense when the defendant does not want to assert the defense itself—I don’t really have strong feelings about it.”

We’re talking about a fairly arcane question of civil procedure? Well, actually no. You’re talking about a fairly arcane question of civil procedure. Were we all talking about it, we never would have seen Henry’s repeated insistence that you don’t support torture. We never would have seen Greenwald’s countervailing moral claim that your honest advocacy for a bad cause is worse than dishonest hackery would be.

Do you always confine yourself to talking about what the law is rather than what it should be? Clearly not. From your Volokh post that aaron has linked to twice:

“From a standpoint of policy, this result seems incredibly bizarre to me. Could it really be the case that the U.S. should have to deport or set free an Al Qaeda cell tying to blow up a nuclear bomb in the U.S.?”

So when Tim Burke asks you to opine on what is right as well as what is the law, the answer is not that we aren’t talking about that, or that you don’t talk about that. The answer is that you don’t want to.

Getting into *why* you don’t want to would be speculating about motives again. So I’ll just say that, functionally, this is common technique. If you’re talking about illegal government surveillance? Then you’re just talking about the law: please don’t ask about whether you think it’s right. Talking about scary Muslim terrorists blowing up New York? Then by all means some interpretation of the law has to be found to stop them.

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Wilco 04.06.10 at 5:39 am

“”I did not say that “more than one or two cranks” are bound to think that you’re an awful, terrible person because you’re blogging on a controversial topic. . .I said that people have gotten the impression that you refuse to play by the rules and that you refuse to admit that you’re wrong when everyone can see that you are – even about what are arguably relatively unimportant, tangential details.””
– False. What you said was:
“”Do you think that anyone believes you will ever say anything else or otherwise admit you’re wrong in any significant detail? If I were you, I’d be ashamed and humiliated to have more than one or two cranks think that of me.””

You asked Professor Kerr what he thought about what ANYONE would believe about distinct possibilities for his future conduct. Your second statement, though oh so compellingly condescending, in no way transforms the preceding question into what you claimed to have said in your subsequent reply to his response. Professor Kerr answered your question appropriately, given what you actually said. It seems to me that perhaps what you should have asked was “do you think I, scent of violets, believe you will ever say anything else or otherwise admit you’re wrong in any significant detail”. Professor Kerr could have said no and you would not be required to deal with the cognitive dissonance resulting from attempting to align what you thought you said with what you in fact said, by fabricating mischaracterizations.

Henry you were spot on.

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piglet 04.06.10 at 6:18 am

“If you’re talking about illegal government surveillance? Then you’re just talking about the law: please don’t ask about whether you think it’s right. Talking about scary Muslim terrorists blowing up New York? Then by all means some interpretation of the law has to be found to stop them.”

You haven’t got this quite right Rich. On the one hand we have a confirmed case of government abuse and a court ruling it illegal, and Kerr devotes his energy to arguing that the court ruling doesn’t mean anything thus it may still be legal even though heaven forbid he’s not saying that it should be legal. On the other hand we have a hypothetical case of terrorists that hypothetically are stopped by illegal means and Kerr’s argument is to say that although this would be illegal, it shouldn’t be and because he thinks it shouldn’t be it probably isn’t. I doubt anybody can make good faith sense of this.

“THE QUESTION OF WHAT I THINK THE LAW IS, AND WHAT I THINK THE LAW SHOULD BE, ARE COMPLETELY UNRELATED.” In a certain sense, perhaps.

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LFC 04.06.10 at 6:28 am

I went back up and scrolled down (parts of) the thread, and I noticed that several times Kerr has said, in somewhat different ways, that his main concern is “getting right the question of what the law is” (not a verbatim quote but it’s the gist), that when he occasionally diverges from this concern to make normative statements he’s careful to label them as such, that he thinks “the question of what the law is and the question of what it should be are completely unrelated,” etc. (His ‘legal positivism vs. natural law’ remark was also intended to be in the same vein, I think.)

I’m not a legal philosopher or anything close to it, but I do find it interesting and a bit (or more than a bit) surprising that someone, especially someone who clerked at the Supreme Court and presumably dealt with a lot of constitutional law issues, has this categorical, ‘absolutist’ view. Now, probably the is/ought divide does apply to large swaths of the law, and it probably applies to the issues of procedure etc. that have been the focus of some of this thread, but for someone of Kerr’s experience and credentials to write, in capital letters for emphasis and in a categorical fashion, that “the question of what the law is and the question of what it should be are COMPLETELY [NB: completely] unrelated,” does surprise me. Certainly there are eminent legal theorists who would disagree with this; and while, conversely, there are doubtless theorists and lawyers who would basically agree with it, I wonder whether they would be quite so categorical. Isn’t it reasonably obvious that there are Supreme Court decisions in which justices’ views of what the law ‘should be’ influenced their views about what the Constitution requires and therefore what the law ‘is’? My intention is not to drag this discussion late in the day in a whole new and contentious direction, but I did want to say this before the thread closed.

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Orin Kerr 04.06.10 at 6:33 am

Rich Pulasky,

I tend to agree with Learned Hand that the Spirit of Liberty is the spirit is not too sure that it is right. That is, I’m pretty cautious about making grand claims about what is good or bad as a matter of policy: I’m more likely to have tentative views, and to know that my view may be right or wrong and that I’ll have to rethink it if I learn new evidence.

Take the TSP, for example. Pre FISA-fix, it was illegal, and I was reasonably confident talking about it illegality (at least subject to some assumptions). But is such a program bad from a policy standpoint? I don’t know. I don’t know the real scope of the program, exactly how it works, how effective it is, what the privacy safeguards are used. Never having been read in to the classified program, I don’t know the facts and can’t really answer if the program is desirable or not.

So I tend to blog about the law because the law is unclassified, and we can discuss it: We can make progress on the issue. I don’t tend to blog about the broad policy question of the desirability of the TSP because the program is classified, and I don’t know how to evaluate the desirability of classified programs. I can make very vague guesses, based in part on how people who have been read into the program react to it, but of course that’s just a very vague guess.

Of course, that doesn’t mean I won’t sometimes blog about the policy issues: As you point out, occasionally I do. But as I said above, I try to emphasize in those posts that I am “going normative,” and that that my views are tentative to the extent there are facts that I don’t know.

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Orin Kerr 04.06.10 at 6:38 am

LFC,

I think you’re conflating two questions: 1) What the law presently is, and 2) What a court might do with the law. It’s quite right that when the Supreme Court decides a case, they will sometimes change the law in the direction of the Justices’ preferences. We can debate if that is good or bad, but I think we all agree it happens. But what the law *is* is a different question: That’s an effort to just explain the law as neutrally and fairly as possible. Think of it as what an OLC opinion *should be* (and wasn’t under John Yoo) or what you might expect from a Congressional Research Service report.

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Orin Kerr 04.06.10 at 6:50 am

By the way, 311, very good comment: Yes, when I realized that Glenn was making a narrower claim, I then asked him to support the narrower claim. What is frustrating is that after I asked Glenn about the narrower claim — and have stuck with that narrower claim since — Glenn doesn’t seem to have realized (to take the charitable interpretation) that I have changed the argument to exactly what he is actually claiming. More broadly, I really really REALLY just want to know of the cases that Glenn is relying on for his view that the court considered the arguments silently because the plaintiffs raised them, even though the defendants did not: Does anyone know when Glenn’s research assistant might be able to weigh in with Glenn’s cases?

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Rich Puchalsky 04.06.10 at 12:44 pm

Ooh, comment #372 is perfect! Well, I mean that it’s perfect in the sense that it’s a perfect turd. If I may lapse into bad, bad language. But it really is an amazingly good example of its type.

In fact, Orin, I don’t even think that it’s worth my going through the standard “law professor says that the public can’t evaluate whether surveillance program is desirable, because it’s classified” goggling-in-amazement. Could I really do it justice? Spirit of Liberty and all?

Wait, no, I have to draw the careless reader’s attention to a bit they might otherwise miss: “We can make progress on the issue.” Yes, people, it’s possible for us to make progress on discussing arcane points of the law — no progress, however, can be made on discussing whether governmental surveillance should be restrained or not. After all, we can’t evaluate those programs because they’re secret! Likewise, torture. (Because that will annoy Henry.) Who knows the classified details of the waterboarding programs? I certainly don’t. So who, really, can say anything about them? Certainly it’s not possible to *make progress* by saying that they really have to stop, now. That’s just not what progress means.

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Rich Puchalsky 04.06.10 at 12:57 pm

piglet is right in comment #370. But I didn’t want to say something additional about the hypothetical because aaron has mentioned it twice already. Not that it doesn’t bear repeating, but Kerr’s performance in this thread has been so amazing (in the sense meant above) that I didn’t really want to poach on aaron’s turf.

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politicalfootball 04.06.10 at 1:41 pm

Yes, people, it’s possible for us to make progress on discussing arcane points of the law

The other useful thing about limiting one’s discourse this way is that it liberates you to be full of shit, especially if you’re reasonably polite. Other polite scholars, when confronted with your bullshit, will say that your contention is “not of any extraordinary weight in the grand scheme of things.”

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Heur 04.06.10 at 1:56 pm

Actually, a close reading of three pages of the court’s opinion, 20-23, (you can find it here: http://www.wired.com/images_blogs/threatlevel/2010/03/walker.pdf) disposes of this issue.

The court noted on page 22 that the White Paper, containing the Bush Administration’s arguments, does “not bear specifically on the defendants’ alleged surveillance of Al-Haramain.” This would be an especially odd statement for the court to make if it had considered these arguments as relevant to the case.

Glenn characterizes this statement in 310, incorrectly, as stating that that “[w]hile those documents don’t bear on the question of whether these specific plaintiffs were subjected to the surveillance, Judge Walker then explicitly says that his ruling is based on “the body of evidence submitted with plaintiffs’ motion” (p.23).” Not only did the court not say that the documents simply don’t bear upon whether plaintiffs were subjected to surveillance (the court said that they don’t bear upon the surveillance, period), but the “body of evidence” to which the court refers is that submitted WITHOUT the White Paper, as I show briefly below.

The court also says that it found the plaintiffs aggrieved parties on the basis of an earlier motion, BEFORE the White Paper had ever been submitted. Thus, “the Court has already determined, based on the body of evidence submitted with plaintiffs’ motion under 1806(f) (Doc #472/046) that the plaintiffs have made out a prima facie case of electronic surveillance….” The earlier motion to which the court refers does not include the White Paper.

The POINT of these paragraphs is: the court has already found a prima facie case, and the new evidence submitted by the plaintiff (concerning the Bush Administration arguments) has no bearing on this.

Finally, having found that the burden has shifted to the defendants, the court runs through the three attempted rebuttals, finds them insufficient, and concludes.

I cannot imagine how one can read this as any way BUT that the court did not consider the arguments contained in the White Paper.

And kudos to 311 for a great analysis of the earlier comments.

382

ScentOfViolets 04.06.10 at 2:00 pm

What, Kerr is posting again, yet hasn’t acknowledged his error in interpreting my words? An error anyone can verify for themselves with a quick scroll up?

I’m shocked, I tell, shocked! But unsurprised.

383

LizardBreath 04.06.10 at 2:24 pm

The court also says that it found the plaintiffs aggrieved parties on the basis of an earlier motion, BEFORE the White Paper had ever been submitted. Thus, “the Court has already determined, based on the body of evidence submitted with plaintiffs’ motion under 1806(f) (Doc #472/046) that the plaintiffs have made out a prima facie case of electronic surveillance….”

Did you look at the 2008 opinion John Weinberg quoted in 312, and I linked in 349, which addresses the same arguments put forth in the White Paper? That is, the earlier motion may not have relied on the White Paper, but it did address, and reject, the arguments therein.

Orin at 352: Nonetheless, it seems pretty clear that if you don’t raise a defense to liability like a statutory exception or the unconstitutionality of the statute, then such defenses are not in play.

This seems not only not clear, but obviously wrong to me. That’s the point of the distinction I was making above between ‘defenses’ (loosely, any argument that defeats liability) and ‘affirmative defenses’ (that are waived if not pleaded).

384

roac 04.06.10 at 3:11 pm

A parenthetical regarding affirmative defenses: While Rule 8(c) provides that the listed defenses are waived if not pleaded, judges can and do bend the rule where they are persuaded that a defense has actual merit. As a plaintiff’s lawyer, I would never rely solely on the rule in briefing an issue without also addressing the merits. Most judges, pace the anecdote presented by Anderson upthread, want above everything else to do substantial justice as they see it.

385

Rich Puchalsky 04.06.10 at 3:14 pm

You know, I was so amazed by the perfect spectacle of a law professor saying that we couldn’t really say that a surveillance program was good or bad because it was secret that I missed out on another important aspect of #372. We all at a full-blown piety crisis!

(start sirens, “whoop, whoop” noises, toneless recorded voices reciting warnings in the background, etc.)

Remember when I wrote, up above, that the ideal defender of illegal governmental surveillance would of course make the right pietistic statements about torture? You know, “torture is bad”, “waterboarding is torture”, even as the person acts to defend the actual governmental policies and legal interpretations that allow actual torture. Well, it appears that Kerr is even being coy about these pieties!

Here’s Tim Burke:
“I have to say, Orin, that it would be a good deal more reassuring if you could find it in yourself to say on this issue: “Look, the law says one thing, and my first question professionally is to worry about that; what is right otherwise is a different matter, and on this issue, the law is an ass.” IANAL, so getting into what the law says is a different thing, but if the law says what you say it says (and I’m not at all convinced, reading this discussion), the law is bad. It helps to say so.”

Please, please, Orin! You wouldn’t want to make Tim feel bad, would you? If you don’t say it, he won’t be reassured. Henry won’t be able to go on about how although you support lawless surveillance policies we have to get off your case because you don’t support torture. Won’t you say it? It’s so small a statement, yet answers such a crying need. Pretty please?

386

roac 04.06.10 at 3:14 pm

Read that as “Rule eight-parenthesis-lowercase c-close parenthesis.” I hate software that thinks it knows more than you do about what you want.

387

aaron 04.06.10 at 5:28 pm

Rich,
When I brought up the hypothetical scenario in that original post — here — Kerr declined to talk about it (in comment 271, he picked up on my admittedly hyperbolic suggestion that there were no limits to the state’s authority to make the discussion about Hamdi, showing, apparently, that there are some very slight checks on the government’s power) while ignoring the majority of what I had actually said, and I gave up. I have a cold, and life is too short. But feel free to pick up that football and run with it.

388

Martin Bento 04.06.10 at 8:06 pm

Orin Kerr wrote:

“Take the case of a default judgement. Imagine I sue you, saying you are a space alien who stole my soul and that I am entitled to $100. You decide not to show up to defend the charge, and the judge enters a judgment in my favor. Did the judge rule that you are a space alien who stole my soul? I would think the answer is no. Do you disagree?”

Several people have attacked this, saying that the judge could not so rule unless he believed the Plaintiff had made a case that his soul had been stolen, directly contradicting Kerr’s argument. This seems obviously right to me as well, but I have not heard a response from Kerr.

Mr. Kerr, why do you believe a judge could enter such a judgement?

389

Pinko Punko 04.06.10 at 8:36 pm

For those following at home, the most illuminating comments regarding what this show is about (in my mind) are @311 from anatoly and @368/369 from Robert Halford.

Orin, you submitted comments very close to 368 so you may have been typing when Robert posted his.

Robert Halford appears hellbent for leather in his comment, and for that he is my turbo lover. Wait, this is not he?

390

Rich Puchalsky 04.06.10 at 8:40 pm

Due to Crooked Timber’s wonderful re-numbering system, my comments above that refer to #372 now refer to #375. At any rate, it’s the comment by Orin Kerr that begins with “I tend to agree with Learned Hand that the Spirit of Liberty […]”.

391

Heur 04.07.10 at 12:24 am

Lizard Breath writes: Did you look at the 2008 opinion John Weinberg quoted in 312, and I linked in 349, which addresses the same arguments put forth in the White Paper? That is, the earlier motion may not have relied on the White Paper, but it did address, and reject, the arguments therein.

The “earlier motion” to which the court refers when it says that it found a prima facie case that plaintiffs were subjected to electronic surveillance is not that ruled upon in the 2008 opinion.

Regarding the 2008 opinion, the arguments contained in the White Paper were not addressed. There, the court rejected an argument that the states secrets privilege, deriving from the Article II powers of the President, could not be preempted by FISA. In doing so, the court did state that Congress could regulate the extent to which the President could withhold classified information, and in FISA did prescribe the sole means by which the President could undertake foreign intelligence surveillance. However, the arguments in the White Paper make no appearance here, and as far as I can tell from reading the 2008 opinion (very quickly!), were never raised; although these statements certainly don’t bode well for them.

I think the key point here is that, in the most recent opinion, the court said (i) the White Paper does not bear specifically upon the alleged surveillance at issue, and (ii) that a prima facie case that plaintiffs had been subjected to unlawful surveillance had already been found in an earlier opinion. Regardless of the uncertainty as to what may or may not have been in the court’s mind in writing this opinion, these statements seem to indicate that the court was NOT considering the arguments in the White Paper.

392

Orin Kerr 04.07.10 at 1:40 am

Just to return to the question of whether it’s accurate to say Judge Walker didn’t say the program was illegal, I still think the answer is yes.

The plaintiffs did not raise a facial challenge to the program. Rather, they claimed that they had been subject to electronic surveillance without a warrant, and therefore their rights were violated. The Judge found that the plaintiffs had been subject to electronic surveillance without a warrant, and therefore their rights were violated. There was no ruling as to the legality of any “program.” As Heur points out:

*********
The court noted on page 22 that the White Paper, containing the Bush Administration’s arguments, does “not bear specifically on the defendants’ alleged surveillance of Al-Haramain.” This would be an especially odd statement for the court to make if it had considered these arguments as relevant to the case.
**********
I realize that this terminology isn’t popular among the critics posting here in this thread. But I believe it is correct, and it’s how people in the surveillance field talk about such issues, and so I am sticking to my guns here. (The alternative would be to lie and say I agreed with others here, just to seem “reasonable”, but I would rather be correct and seem unreasonable than seem reasonable and yet be wrong.) FISA causes of actions are not causes of actions vis a vis programs: They are causes of action against warrantless electronic surveillance.

393

Robert Halford 04.07.10 at 4:31 am

Good lord, man. The plaintiffs presented a prima facie case on liability because they presented facts showing that the program of warrantless surveillance in that case was illegal. That was the point of the prima facie case. And that was the case that was adjudicated against the government. In THIS CASE, the program was held to be illegal — if it hadn’t been, the plaintiffs wouldn’t have had a case, and there would have been no prima facie case to have been made.

As has been discussed ad nauseum, there is a separate question as to whether there is an issue preclusion/collateral estoppel effect of that finding of illegality in other cases. But that’s a distinct issue. And, as you yourself said above, legal distinctions matter.

Maybe “people in the surveillance field” talk about things in a way that’s somehow different, and that’s not connected with how lawyers who actually know and deal with the relevant rules talk. That’s fine — not everyone has to be familiar with the details of Rule 56; not even everyone who teaches in law schools. But you are presenting yourself as a lawyer and as someone reasonably conversant with civil litigation — making a supposedly “technical” point and citing to your credentials to do so — but you are mixing words that have ordinary currency into a jumble that most lawyers wouldn’t recognize. That is exactly what lawyers and judges are not supposed to do, which is why the civil litigators in this thread have been so resistant to your position.

Let’s go back to your original post, and the things that were clearly and obviously wrong in that post. You said “As a result, the decision doesn’t rule that the program was unlawful.” That was wrong; the decision clearly did rule the program unlawful, under the circumstances presented in that case. You said “After Judge Walker rejected the state secrets privilege claim, the case was over.” That was wrong; Judge Walker still had to rule on the merits of the prima facie claim. You said “DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim. ” That was wrong; Judge Walker clearly did have a choice to reject the prima facie evidence.

Moreover, think for a bit about what this means in context. The plaintiffs presented a prima facie case of illegality which the government did not oppose because the prima facie case was so strong. The “prima facie case” wasn’t just a bunch of random words or half-baked allegations; it was the same case that has convinced 99% of lawyers who have thought about the issue that the program as a whole was illegal. That was precisely the argument that Judge Walker accepted. Even if that ruling may not have issue-preclusive effect, it is a judicial acceptance, for the purposes of the case, that the warrantless surveillance program was illegal.

394

Robert Halford 04.07.10 at 4:47 am

Moreover — and here, I’m going to tone down the rhetoric a lot, because I am sure that you know much more about the Fourth Amendment than I do — isn’t the reason that the plaintiffs didn’t bring a “facial” challenge to the program because facial (as opposed to as-applied) challenges are generally not allowed for Fourth Amendment violations?

That is, the only way in which a court could have determined the illegality or legality of the program would be in the context of a particular violation of the rights of a particular group of people in particular circumstances. That is what a judicial finding that a program is “illegal” under the Fourth Amendment means. So — aside from the issue preclusion point — I’m not understanding what else you want for a judicial finding that the program was illegal.

395

Martin Bento 04.07.10 at 5:49 am

Mr. Kerr, it is true that my point in #388 (if it doesn’t get renumbered) is tangential to the main line of argument. But it does concern an argument you made on this thread, which appears on its face to be ridiculous, as several people have pointed out. Part of what has been questioned here in your intellectual integrity, and your case for your integrity would be much stronger if you either defended your position or admitted you were wrong. Simply ignoring the point, as you have been, does not enhance your credibility.

396

Jeffrey Kramer 04.07.10 at 1:44 pm

Judge Hand died before the introduction of the “one percent doctrine,” and so didn’t learn how some people can be sensibly and modestly agnostic about exactly where our enemies live or what capacities they have, and conclude that this just makes it all the more necessary to kill them all before any of them can strike at us, and to accept any collateral damage this entails. It turns out that “the Spirit of Liberty” doesn’t do too well under that theory, since anybody who stands in the way of endless war is going to be counted as an enemy as well.

I tend to conclude, rather, that the Spirit of Liberty is the spirit of not being conditioned to piss one’s pants whenever government officials (or law professors advising government officials) warn us that the terrorists want to kill us and so we can’t afford to follow the law or the Constitution because that means that sometimes bad things will happen (like suspects going free when police violate the law or Constitution).

397

Jeffrey Kramer 04.07.10 at 1:46 pm

(The previous post was supposed to start with Orin Kerr’s quote from Learned Hand that the Spirit of Liberty was the spirit that was not too sure it was right.)

398

Orin Kerr 04.07.10 at 4:04 pm

The plaintiffs presented a prima facie case on liability because they presented facts showing that the program of warrantless surveillance in that case was illegal. That was the point of the prima facie case.

That is incorrect. The FISA statute does not provide a cause of action to a person who was subject to an illegal program. Rather, the statute provides a cause of action to a person who was subject to “electronic surveillance” without a warrant. Thats why Judge Walker said that the DOJ White Paper “did not bear specifically” on the case: The lawfulness of the program was not before the court.

Incidentally, does any one know when Glenn Greenwald might be providing the legal citations to support his argument? As far as I can tell, despite the fact that Glenn and several others claim it is completely and utterly obvious that Judge Walker silently addressed the AUMF and Article II questions without mentioning them — a practice I have never heard of in an Anglo-American legal opinion — no one who takes that view has cited a single case in favor of that view. I’d still really like to see the cases, either from Glenn, his research assistant, or from anyone else. Thanks in advance.

399

atat 04.07.10 at 4:28 pm

“Incidentally, does any one know when Glenn Greenwald might be providing the legal citations to support his argument?”

You keep repeating this question, even though you know that nobody here except Greenwald and his assistant could possibly know the answer. If you want to prod Greenwald, then he has an email address where you are welcome to contact him directly.

400

Anderson 04.07.10 at 6:02 pm

You keep repeating this question, even though you know that nobody here except Greenwald and his assistant could possibly know the answer.

This article may help you, Atat.

401

atat 04.07.10 at 6:59 pm

Anderson – Cute. But, there’s a difference between a rhetorical question and a disingenuous one.

402

Robert Halford 04.07.10 at 7:05 pm

The “program” was illegal as applied IN THE CIRCUMSTANCES OF THIS CASE because it allowed for warrantless surveillance of the plaintiffs, in violation of FISA. The plaintiffs were adjudicated to have been illegally subject to surveillance, when the government engaged in warrantless surveillance using the program at issue. Is that really so hard to understand?

Whether FISA gives plaintiffs the right to make an overall facial challenge to the legality of some government program in all instances is a different point. So is the collateral estoppel effect of considering a defense from the government. You keep changing the subject.

You also seem to be proceeding from the premise that no litigation adjudicates the legality of anything unless there is a decision that some program is entirely illegal on its face. In the context of most civil litigation, that is, frankly, absurd.

I notice that you are still completely unwilling to retract, or even discuss, your most obvious errors. Please tell me exactly why and how Judge Walker had “no choice” but to find for the plaintiffs.

403

Pinko Punko 04.07.10 at 7:24 pm

I think Kerr is making a semantic argument that may have no meaning. But again, in his response to my similar question above, about if surveillance without a warrant is a necessary violation of FISA as it appears to be, how can the program be legal? Kerr’s response was that the program could still be legal due to a netherworld of hypothetical arguments that have not been addressed. This seems cynical in the extreme.

404

Questioner 04.07.10 at 7:26 pm

“You keep repeating this question, even though you know that nobody here except Greenwald and his assistant could possibly know the answer.”

But what Kerr wrote was: “despite the fact that Glenn and several others claim it is completely and utterly obvious that Judge Walker silently addressed the AUMF and Article II questions without mentioning them—a practice I have never heard of in an Anglo-American legal opinion—no one who takes that view has cited a single case in favor of that view.” In other words, Kerr isn’t intending the question rhetorically because other people are claiming that things are just as clear as Greenwald holds. Given that they think things are just as clear as Greenwald thinks they are, and given that they’re willing to hold that Kerr is ignorant, and dishonestly covering up his ignorance, for not knowing this, it stands to reason that they think there is some fairly clear evidence for their view. If they do have it, it’s not crazy to think that they should share it.

(As for who these others are, I assume Kerr has in mind Bloix (comments 130, 145, and 160) and LizardBreath (comment 343). I’m not a lawyer, though, so perhaps those comments aren’t pertinent to the point Kerr is raising.)

405

Anderson 04.07.10 at 7:50 pm

Kerr’s response was that the program could still be legal due to a netherworld of hypothetical arguments that have not been addressed.

Bear in mind that you want that to say “could hypothetically still be legal,” since Kerr has already said that the program *was* illegal AFAHK and that the Article II arguments, etc., are bunk.

Judge: “All right, looks like y’all were spyin’ on these folks. FISA says you gotta have a warrant to do that. Y’all boys do that with a warrant?”

Feds: “We have double-plus-secret reasons not to answer that question, Judge.”

Judge” “I’ll take that as a ‘no.’ Judgment for Plaintiffs.”

Kerr’s point, which has not been convincingly rebutted, is that the court does not thereby rule on any defenses *not* pleaded by the feds. And nothing bars the feds from raising those in any future such case — which I’m guessing, and I daresay the feds are betting, will be unlikely, given the peculiar facts that led to these plaintiffs’ clearing the hurdle of standing. A district court ruling is not binding in a future case, even in that same district court — even before that same judge.

(I thus retract my view that Kerr erred in saying the program was not ruled unlawful, having been persuaded by his arguments and others in this thread.)

406

atat 04.07.10 at 8:46 pm

Questioner – You’ve misunderstood my post. The question I was referring to–the one that Kerr keeps repeating–is, When will Greenwald and/or his assistant post their cites? Obviously only Greenwald and his assistant can answer that, and Glenn has apparently lost interest in continuing this discussion.

407

Orin Kerr 04.07.10 at 9:20 pm

You keep repeating this question, even though you know that nobody here except Greenwald and his assistant could possibly know the answer.

I don’t know that — indeed, I was assuming it was false. Several commenters here have expressed the view that I am clearly disingenuous because I am obviously wrong about the law. But it would make no sense at all for them to assert that position if they themselves had no idea what the law was. I suppose I could assume that they were just full of baloney, and that they were just jumping on Greenwald’s bandwagon out of a blind faith that Glenn Greenwald must be right and I must be wrong. But that doesn’t seem like a very charitable assumption about what they were doing.

408

Robert Halford 04.07.10 at 9:46 pm

Eh, I give up. Kerr has pretty much lost my respect as a responsible interlocutor on these kinds of things.

The odd thing is that I don’t actually disagree with Kerr on the underlying point that I think he’s been trying to make, if inartfully — namely, that there is not a ruling as to the overall legality of the warrantless wiretapping program that would preclude another court from coming out differently on the same issue. That’s probably true. But (and this goes to Anderson’s comment, above) that’s not what Kerr’s original post stated, at all. He didn’t say “a district court ruling is not binding in a future case, even in that same district court—even before that same judge,” and that the ruling on legality didn’t have collateral estoppel effect. He said that there was NO judgment as to the legality of the program, and that Walker was compelled to make his ruling due to the government’s failure to argue the issue. Those statements were incorrect.

And Kerr’s refusal to admit wrongness on basic issues of procedure, the changing the topic, the snideness, the passive-aggressiveness — enough. I went into this thread kind of agreeing with Henry that Greenwald has an overly aggressive style, even if I agree with him often on substance. After this thread, I view Kerr as just another law professor whom the internet has exposed as basically kind of a fraud (see Reynolds, Glenn, Althouse, Ann, Bernstein, David — and the list goes on).

409

Orin Kerr 04.07.10 at 9:47 pm

Glenn has apparently lost interest in continuing this discussion.

It would be extremely unfortunate if Glenn Greenwald, having said I am dishonest or a fool for disagreeing with him, and yet having been confronted with cases I found suggesting I am right and he is wrong, would pick that time to “lose interest” in the discussion.

410

Orin Kerr 04.07.10 at 9:50 pm

He said that there was NO judgment as to the legality of the program, and that Walker was compelled to make his ruling due to the government’s failure to argue the issue. Those statements were incorrect.

No, they were correct.

After this thread, I view Kerr as just another law professor whom the internet has exposed as basically kind of a fraud (see Reynolds, Glenn, Althouse, Ann, Bernstein, David—and the list goes on).

I’m not sure why I am fraud given that the cases I have cited indicate I am right and Greenwald is wrong. But of course that’s your judgment to make, based on whatever standard you decide to use to measure integrity.

411

ScentOfViolets 04.07.10 at 9:55 pm

Perhaps. That will leave some wiggle room, I suppose. But other commentors have stated that you’ve clearly been in error on other matters – which is true – and that you have not admitted to them. For example, you were in error as to what I said (to put it politely), this was pointed out to you . . . and you still haven’t offered a retraction.

Now, reasonable posters can admit there’s something they don’t know about the law (being after all, non-lawyers) that in the end will turn out to make all the difference, vis a vis the positions you and Glenn have taken, and that they aren’t competent to judge. But they can also conclude from the arguments made thus far that they are capable of following that you’ve been stonewalling all the way when it comes to admitting you’ve made mistakes. And this has not done your reputation any good (in fact, I would say that Henry hasn’t done you any favors by writing this post), in fact, by making this a matter of appeals to authority, you’ve kind of forced people to take Glenn’s side.

That’s why reputation matters. And by your own actions, you’ve lessened it.

412

Orin Kerr 04.07.10 at 9:56 pm

Oh, and I’ll add, if anyone else wants to continue this discussion, I’d be delighted to do so. It seems like no one wants to respond to the case citations I have made, which I find kind of puzzling. But I guess that’s the Internet for you.

Anyway, if anyone wants to finally address the legal authorities — Glenn’s research assistant, perhaps? — just send me an e-mail to my gwu.edu address.

413

Anderson 04.07.10 at 9:57 pm

and that Walker was compelled to make his ruling due to the government’s failure to argue the issue

That doesn’t *quite* follow, I think. The district court could have ruled *for* the government on the basis of arguments not raised by the feds, or even by either party. I don’t think a court is obliged necessarily to reach out for arguments not raised by the parties (with the exception of jurisdictional arguments), but had the court found the “Article II arguments” persuasive, it could presumably have ruled on that basis.

Those arguments not being persuasive, however, no such situation arose, and given that the district court already had a sound basis to rule against the feds, it would have been a bit odd for the court to continues, “even tho unnecessary to the disposition of this case, and having nothing to do with the arguments made by the feds, here’s what I think about ….” It does happen sometimes, but it’s poor form. A court — particularly a district court! — generally decides a case on the narrowest basis possible, without seeking opportunities for flamboyant dicta. There are of course exceptions.

414

atat 04.07.10 at 10:03 pm

“I don’t know that—-“

And again, you’re simply misreading my post. It’s trivial in the entire scope of things, but the question I was referring to was your multiple variations on, Does anyone know when Greenwald will post his legal citations? Since you don’t seem to be posing that question as a rhetorical, I was simply making the observation that these prompts don’t serve any purpose other than to needlessly remind everyone that Greenwald hasn’t returned to the discussion. In other words, how could any of us know when Greenwald will post his citations?

415

Orin Kerr 04.07.10 at 10:03 pm

Scent,

Hmm, I don’t think there are any issues that commenters have pointed to that I have yet to respond to and explain. Can you be specific? I want to make sure there aren’t any issues that I should be apologizing for that are still open.

As for my alleged “stonewalling,” the difficulty is that I believe it turned out that I was right and Glenn was wrong. If I understand you correctly, you find something improper in my pointing that out by citing judicial authority. But given that the courts say what the law is, that’s not an “appeal to authority” in any improper sense. Rather, it’s how we know what the law is that makes the rule of law possible.

416

Heur 04.07.10 at 10:05 pm

Robert,

I think Anderson ably, and humorously, summed it up. Listen, I believe that Anderson is a lawyer; I am a lawyer. I understand your point; however I also think you misunderstand what Kerr’s point has been. I do not think either Glenn or Kerr has been dishonest.

I also think we should really think twice before deciding, on the basis of what we believe to be misread or misstated comments, that there must be dishonesty involved. It’s simply too easy to misread and misinterpret.

417

Robert Halford 04.07.10 at 10:12 pm

Personally, one of the standards I use to measure integrity is how you conduct yourself over the course of a debate.

Greenwald’s actual argument, as I understand it, is simple — that Judge Walker ruled that the program was illegal, in the context of this case and given its procedural posture. You made a technical mistake in your characterization of the effect of the ruling in your original post — even if what you were trying to say (namely, that this wasn’t a ruling that precluded the government from raising certain affirmative defenses in other cases) was correct. Greenwald was obviously right about your technical error, as were the other lawyers looking at the issue.

So, you then changed the subject, and you demanded that Greenwald demonstrate something else — that the point you hadn’t actually made, but happened to be correct about, was wrong. (Namely, that the ruling considered the Bush Administration’s constitutional argument in detail and that the ruling had issue-preclusive effects in other cases.) But Greenwald wasn’t attacking the correct argument you wish you had made — he was attacking the incorrect argument you did actually make.

Even though this has been repeatedly pointed out to you, you have since then have kept insistently claiming that you were right and Greenwald was wrong, whereas in fact you made a somewhat minor technical mistake in your original post (in my view, not the biggest deal in the world) that for some reason you’ve insistently refused to own up to. You have then, to paper over your mistake, demanded that Greenwald provide citations for an argument he wasn’t actually making, and relentlessly changed the topic to pretend that you said something better and more legally artful than what you actually said.

I still notice that you are claiming that there was no ruling at all as to the legality of the program. Perhaps by “legality” you are imagining that you mean “consideration of the Bush administration’s arguments in defense of the program” or “preclusive effect in other cases.” But those words do not mean the same thing. What the plaintiffs demonstrated in this context — with evidence — is that the program was used illegally as applied to them. In violation of the law. Illegal. I am somewhat baffled as to how you get from a ruling that the government’s use of a program was illegal to a conclusion that there was no ruling on illegality, and can’t really think of a way in which . But maybe that’s just how people “involved in surveillance issues” talk.

418

Robert Halford 04.07.10 at 10:16 pm

And I should say that I don’t think Kerr is being dishonest, exactly. Frankly, I have no idea what’s going on with Kerr in his heart of hearts. But I have lost a lot of respect for Kerr over the course of this debate.

419

VV 04.07.10 at 10:22 pm

IANAL, but my job is often to read things carefully and render judgement on whether they make sense (ie, I’m a college professor). And having read all the posts here, with enough care, Professor Kerr appears to be stonewalling, changing the subject, and not convincingly addressing objections to his positions. Multiple civil litigators (admittedly, anonymous, so who knows, maybe they’re dogs) have stated (and provided arguments for their statements) that a basic assertion by Prof Kerr is false. He keeps repeating it is true (he’s not evading actually, he has stated multiple times he stands by it). I am convinced by them.

On the overarching issues in play here, Prof. Kerr is implicitly providing support for a despicable position, and as many people have argued that is actually even more important.

420

Martin Bento 04.07.10 at 10:42 pm

Mr. Kerr wrote:

“Hmm, I don’t think there are any issues that commenters have pointed to that I have yet to respond to and explain. Can you be specific?”

Actually, I have asked you several times to justify your position that a judge could rule for a plaintiff claiming to have had his soul stolen without believing a case had been made for the allegation. I realize the example is silly, but it is yours, not mine, so I don’t see that objection as open to you.

421

Anderson 04.07.10 at 10:50 pm

IANAL, but my job is often to read things carefully and render judgement on whether they make sense (ie, I’m a college professor).

This and many other comments are reminiscent of jurors who decide for one side or the other based on the demeanor of one side’s attorney. Which happens sometimes.

The issue, as best I can tell after 400+ comments, is whether the district court ruled on the legality or illegality of the TSP. Reasonable people can differ, but that doesn’t mean they are equally correct. The feds did not argue the program’s legality, it appears, and the district court based its ruling simply on the feds’ apparent lack of a warrant, without addressing any possibility that warrantless surveillance might be legal on some unpresented theory.

Going back to the NYT sentence that Prof. Kerr’s blog post focused upon: “The ruling delivered a blow to the Bush administration’s claims that its surveillance program, which Mr. Bush secretly authorized shortly after the terrorist attacks of Sept. 11, 2001, was lawful.”

Prof. Kerr noted that, as it seemed to him, no such “blow” was dealt to those “claims,” because those claims were premised on theories of executive power not addressed by the district court. (Obama appears to’ve wanted to avoid a ruling on those claims, presumably to preserve them for later use?)

It should be evident by now that there is at the very least a good-faith argument that Prof. Kerr was correct, and that the NYT story gave the possible impression that those “claims” had been ruled upon by the district court. He was being a bit ticky, since the NYT item did later explain that “Judge Walker did not directly address the legal arguments made by the Bush administration in defense of the N.S.A. program,” but being ticky is one of the reasons God created blogs.

Based on my familiarity with his blogging, I daresay Prof. Kerr is not losing any sleep over whether blog commenters think he sounds meaner than those who disagree with him.

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Heur 04.07.10 at 11:06 pm

This is getting somewhat circular.

Robert, everyone (including Kerr) agrees that plaintiffs prevailed on the question as to whether they were subjected to illegal electronic surveillance. No one has denied that. Everyone agrees that the court ruled that the electronic surveillance conducted here without a warrant was illegal.

Greenwald has argued that to reach this result, the court would have had to consider the Bush Administration’s arguments in the White Paper. His reasoning is that to find the electronic surveillance illegal, the court would have had to conclude, as a matter of law, given the facts, that it was illegal; if the court were persuaded by the Bush Administration arguments, he could not have so found; the court was aware of the Bush Administration arguments; the court found the electronic surveillance illegal; therefore the court was not convinced by the Bush Administration arguments.

Kerr’s argument is that the court simply did not consider the Bush Administration arguments, and instead simply ruled on the basis that warrantless electronic surveillance was proved, and no rebuttal or justification was offered by the government (whether an actual warrant or otherwise). He argues that the court would not have had to consider the Bush Administration arguments.

It took several iterations before everyone was clear on what Greenwald was arguing, and what Kerr was arguing, but I believe that those are the two positions. In my opinion, Kerr is correct here. Perhaps you differ, though it’s unclear to me that you do; instead I think you may simply be misreading Kerr’s view.

What you seem to want to do, Robert, is argue:
(1) The court found the electronic surveillance alleged here was unlawful;
(2) The electronic surveillance alleged here was part of a surveillance program;
(3) Therefore The program was found unlawful.
(4) Kerr claimed that the program was not found unlawful.
(5) Therefore Kerr is wrong.

But (3) is not correct. It’s not necessary to the court’s judgment, and it wasn’t argued. I understand the intuition: if the program is legal, then the surveillance is legal. If p, then q. Not q. Therefore not p.

But there are multiple problems. The initial intuition is actually wrong: the program could be legal, and the surveillance still illegal. So as a matter of logical validity, the argument fails.

Secondly, as has been expanded above rather fully, the court doesn’t actually need to consider the legality of the program, as such, to rule. The point of Kerr’s citations to various analogous issues is to show why a court would not necessarily be considered to have decided an issue like the program’s legality in deciding whether the surveillance was illegal.

Third, as a supporting point, there is the court’s opinion itself, which seems to state that the Bush Administration’s justifications were not considered, were not relevant, and that the finding of unlawful electronic surveillance was made without considering such justifications (which can only mean, of course, that the court did not consider the legality of the program).

Anyway, I found the discussion interesting. Let me echo the thanks already expressed to all who participated.

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Rich Puchalsky 04.07.10 at 11:07 pm

Anderson: “The issue, as best I can tell after 400+ comments, is whether the district court ruled on the legality or illegality of the TSP. “

No, it isn’t. That is the issue that Kerr would evidently like to talk about, within a certain very technical legal framework. But if you look back up at the post that started the thread, the issue was whether Kerr was sometimes an apologist for Bush policies, and if so whether this means that Kerr is “a hack”. (To use Henry’s phrasing, not Greenwald’s.

The answer to the first is, emphatically, yes. The answer to the second is confused, because Henry (and also now Kerr) have, typically, refused to understand what Greenwald wrote in plain language — that he is not accusing Kerr of dishonesty, but that he views Kerr’s advocacy for this cause as being worse than dishonesty.

Regardless of whatever technical point Kerr is trying to make, he appears to be writing deceptively (I have no idea whether it is intentional deception) in that most people, including if this thread is any evidence most lawyers, would misunderstand what he is trying to say about the legality of the surveillance in the case.

Kerr doesn’t get to say that the thread is about what he thinks it is about. Or rather, he can say what he likes, but it’s not true.

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LizardBreath 04.07.10 at 11:07 pm

It seems like no one wants to respond to the case citations I have made, which I find kind of puzzling. But I guess that’s the Internet for you.

Our conversation about the difference between a ‘defense’ and an ‘affirmative defense’ wasn’t a response to those citations? I thought it was.

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ScentOfViolets 04.07.10 at 11:10 pm

IANAL, but my job is often to read things carefully and render judgement on whether they make sense (ie, I’m a college professor).

This and many other comments are reminiscent of jurors who decide for one side or the other based on the demeanor of one side’s attorney. Which happens sometimes.

Speaking as one of those “college professors” who have to read things carefully and render judgment, you’re trying to have it both ways. You can’t simultaneously argue that the argument is too abstruse for the little people so that they have to rely on some sort of authority, and then sneer at them because they are basing their judgment on whom to trust based on statements they can follow and how those in authority comported themselves then.

In fact, I’d have to say that you’re deliberately trying to pitch an analogy that is not only untrue, but insulting as well.

426

Anderson 04.07.10 at 11:16 pm

the issue was whether Kerr was sometimes an apologist for Bush policies

“Apologist” is a loaded word. I approved of Bush’s support for the pro-democracy movement in Ukraine, but I scarcely think that makes me a “sometimes Bush apologist.”

and if so whether this means that Kerr is “a hack”

The motives you ascribe to Greenwald would tend to demonstrate that GG, not OK, is the “hack”:

he views Kerr’s advocacy for this cause as being worse than dishonesty

WTF? What “advocacy” for what “cause”?

most people, including if this thread is any evidence most lawyers, would misunderstand what he is trying to say about the legality of the surveillance in the case

I appear to’ve misunderstood this myself upthread, but I have a funny little habit of supposing that, when I misunderstand something, it might be *my* mistake and not that of the person I’ve misunderstood. That habit does not seem to be shared by many of Kerr’s critics on this thread.

Prof. Kerr clerked for Justice Kennedy, is a co-author of a highly respected treatise on criminal procedure, and is an acknowledged expert in Fourth Amendment law with particular application to electronic communications. None of that means that his statements should not be subject to analysis and criticism, but it does suggest to me that Kerr might be better educated on this subject than Anderson is, and hell, might be just plain smarter than I am, too.

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Anderson 04.07.10 at 11:25 pm

You can’t simultaneously argue that the argument is too abstruse for the little people so that they have to rely on some sort of authority, and then sneer at them because they are basing their judgment on whom to trust based on statements they can follow and how those in authority comported themselves then.

I don’t think an observation about a common psychological phenomenon is a “sneer.” I can’t tell if the arguments are too abstruse — I’m a lawyer (who has taught English in college, for that matter). And if this were a trial, not a blog thread, I think that an advocate for one side would have a duty to pitch things slow & easy over the plate for non-lawyers.

However, this is not a trial, and while Prof. Kerr may or may not be a good advocate for his position (the “soul-stealer” analogy was I think more amusing than helpful), he can certainly prefer to focus on whether he’s right on the technical points, without feeling the need to persuade non-lawyers. That may be annoying to the non-lawyers, and they are free to express their annoyance.

A better analogy than the jury one might be to someone who evaluates a thread about the East Anglia climate-science lab controversy on the basis of whether the scientists and their critics sound candid, are explaining themselves properly, etc., all of which would be relevant for evaluating their PR skills, but would not affect whether the scientists were *right*.

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ScentOfViolets 04.07.10 at 11:25 pm

I appear to’ve misunderstood this myself upthread, but I have a funny little habit of supposing that, when I misunderstand something, it might be my mistake and not that of the person I’ve misunderstood. That habit does not seem to be shared by many of Kerr’s critics on this thread.

And I have a funny little habit of supposing that, when many different people misunderstand the same person, and they still don’t understand that person after many promptings, that maybe it’s the one person that is at fault. It’s a college professor thing, I guess. By contrast, I have found that other lawyers, say Lizard Breath, make comments that are illuminating and understandable. He hasn’t had to be prompted multiple times to clarify something he has said, or been disingenuous, or equivocating; in fact, quite the opposite.

Yeah, I know, you think that’s funny.

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Anderson 04.07.10 at 11:28 pm

By contrast, I have found that other lawyers, say Lizard Breath, make comments that are illuminating and understandable. He hasn’t had to be prompted multiple times to clarify something he has said, or been disingenuous, or equivocating; in fact, quite the opposite.

LB is a she, I believe.

And while LB is in fact the commenter on this thread I have the most respect for, having seen her track record at Unfogged & other blogs, “illuminating” and “understandable” do not equal “correct.” I in fact agreed w/ LB at first that OK was wrong in writing that the program was not held unlawful, so I am not one to criticize others for agreeing with her on this thread.

430

Rich Puchalsky 04.07.10 at 11:30 pm

““Apologist” is a loaded word.”

You haven’t really been reading the thread at all, have you?

For your information, Kerr agreed that he is an apologist. That one was, far, far back. For the rest, I didn’t “ascribe motives to Greenwald”, I summarized a comment than he made. Nor do I see how his completely understandable moral revulsion at Kerr’s defense of governmental surveillance makes Greenwald a hack. It’s quite normal for people to be repulsed by people who honestly defend governmental misdeeds. Note that I am not using “misdeed” as a legal term.

As for whether Kerr is an advocate for a cause, well, I’ve only referred to his Senate testimony five or six times now.

431

ScentOfViolets 04.07.10 at 11:35 pm

However, this is not a trial, and while Prof. Kerr may or may not be a good advocate for his position (the “soul-stealer” analogy was I think more amusing than helpful), he can certainly prefer to focus on whether he’s right on the technical points, without feeling the need to persuade non-lawyers. That may be annoying to the non-lawyers, and they are free to express their annoyance.

And again, that’s (deliberately) mischaracterizing what non-lawyers have been expressing, which is not their annoyance, but their opinion that Kerr has been both wrong and determined not to admit it. I know that it must annoy you that some of us feel that Kerr is a second-rater, and that as a class lawyers aren’t particularly bright (they stand about knee high to people like me in that regard, if you insist on this sort of frame), but . . . there it is.

You have also, btw, managed to contradict yourself within the space of two posts, so maybe you should slow down and edit before hitting the submit button.

A better analogy than the jury one might be to someone who evaluates a thread about the East Anglia climate-science lab controversy on the basis of whether the scientists and their critics sound candid, are explaining themselves properly, etc., all of which would be relevant for evaluating their PR skills, but would not affect whether the scientists were right.

Really? But you’re not being demeaning to anyone here when you say that, right? Why don’t you quote the parts in this thread where you think this has happened, and let other people decide for themselves.

432

Robert Halford 04.07.10 at 11:37 pm

422 — I don’t know what definition of “unalwful” you ordinarily work with as a litigator (or, indeed, if you even are a litigator). Here’s mine: Judges have the power to decide, based on the facts and procedural circumstances presented to them, whether certain governmental conduct is lawful or unlawful. Generally, they don’t have the power to issue advisory opinions. A ruling that an action was unlawful in the particular circumstances of the case is, most of the time, all that you get (yes, there are exceptions, like facial challenges to statutes on first amendment grounds, but they are rare). Courts rule on the cases before them.

In this case, the plaintiffs’ claim was that the federal government’s Telephone Surveillance Program, as applied to them, violated their rights under the Fourth Amendment to the United States Constitution because their calls were monitored without a warrant. That claim was, based on the prima facie evidence that the plaintiffs presented, accepted by the court. There was a ruling. The ruling was that, as applied to these plaintiffs, the government’s use of the Telephone Surveillance Program was illegal. That is a binding determination, and it has claim preclusive effect on the issue of illegality. Unless it succeeds in overturning the judgment on appeal, the government cannot now argue that, as applied to these particular plaintiffs, its use of the Telephone Surveillance Program was legal.

Kerr’s original point in the Volokh Conspiracy post, which is all that I’m taking issue with, is that the Court did NOT find that the “program” was illegal, and that Judge Walker didn’t consider evidence of illegality, and that Judge Walker was automatically constrained to make his ruling. Those points, which Kerr made in his original post, are quite clearly incorrect. There was a ruling on legality, which the government lost.

Kerr (and his defenders here, including you) have then shifted the discussion to a separate question: What is the effect of the government’s failure to raise the constitutional “defenses” offered by the Bush administration in the context of the hearing. I think it is pretty clear that, because those defenses weren’t raised, the ruling that the program was illegal in this case does not preclude the government from raising those same defenses in other cases. And the Court’s ruling doesn’t mean that there was a judicial finding that the Telephone Surveillance Program was illegal on its face or in all instances. I probably agree with you about that. But that is not at all where Kerr started off — he started off by claiming that there was no finding of illegality at all. And my understanding is that Greenwald’s critique was directed to Kerr’s original post, not to your revision of Kerr’s point — though I am not Greenwald, so I can only speak for myself.

This is a fairly technical difference, but it is not a trivial one. I have had plenty of cases where, representing a plaintiff, a defendant failed to raise a particular legal argument. Say, a tort case where preemption might have been a defense. When judgment is entered in those cases, the defendant cannot then go back and try to reopen the case to discuss the legal argument he didn’t raise — he’s lost the case, and I’ve won it. In my case, the “legality” of the defendant’s actions has been resolved in my favor. The fact that the overall legality of the action may still be subject to different defenses in different fora is a quite different question.

433

ScentOfViolets 04.07.10 at 11:42 pm

And while LB is in fact the commenter on this thread I have the most respect for, having seen her track record at Unfogged & other blogs, “illuminating” and “understandable” do not equal “correct.”

I’m just a poor country mathematician, y’all, but I believe this is a strategy known as “moving the goalposts”. I did not claim that LB was correct, merely that she (thank you) was clear and understandable, and that a few people have expressed this opinion as well. And I did not claim that she was correct because I wad responding to your statement about what to infer when you know you’ve misunderstood someone (since you’ve misunderstood them, how could you possibly know whether they were wrong or right until you understood them?)

434

ScentOfViolets 04.07.10 at 11:51 pm

Robert@432: I can’t speak for other people, but this is how I understand the discussion and the sequence of events modulo the little detours along the way. Wrt your last paragraph, I think that LB has addressed this one with her dilation upon the difference between “defense” and “affirmative defense” and when they applied. Not to say that she might be wrong, of course – I don’t have the background to judge that. But she is clear :-)

435

Heur 04.08.10 at 12:06 am

Robert,

I don’t think we’re far apart here. Kerr’s post at the Volokh Conspiracy largely agrees with your main point: that plaintiffs prevailed and the court found the electronic surveillance to which they had been subject was illegal (a point he states explicitly).

The disagreement here is the extent to which, in doing so, the court considered the lawfulness of the program. Let me explain what I mean. By this I do not mean a disagreement as to whether the court had broadly declared the entire program illegal (of course not), but a disagreement as to whether the court, in reaching its judgment, had to consider as an issue whether the program as applied, as alleged, was legal or illegal, beyond the consideration of whether the electronic surveillance conducted had violated FISA.

The point is that yes, the court concluded that the alleged electronic surveillance violated FISA; judgment for plaintiff; but did the court consider whether or how FISA should apply given the legal theories described in the White Paper? No.

Right, so to the extent that the court found the alleged electronic surveillance violated FISA, the judgment isn’t surprising or with any broad implication. Everyone agrees that the court did that. The disagreement is actually as to whether the court considered the broader question of how and whether FISA should apply at all here. Kerr says no. Greenwald says yes (and quite a bit more, if you read his column). If I’m reading you correctly here, you actually agree with Kerr.

436

LizardBreath 04.08.10 at 12:14 am

I agree with 432 as an excellent explanation of what I think is going on here.

There are all sorts of ways one could accurately argue that the ruling didn’t mean much outside of that particular case — it’s a district court, so not binding precedent on anything; the government didn’t argue for the legality of its conduct, so if there was a good argument out there, the court might not have been aware of it, and so on.

What I’ve been crabbing about throughout is that it’s as much a ruling on the legality of the program as any such opinion could be; the ruling Judge Walker would have made in a world where the government had aggressively litigated the legality of the program would have been no more and no less a ruling on whether the program was unlawful.

437

Robert Halford 04.08.10 at 12:23 am

435 — Thanks, but I’m having a hard time getting from your agreement to any belief that this statement from Kerr was correct:

“As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.”

There was (a) a ruling that the program was unlawful, in these circumstances (b) the case was not “over” after Judge Walker rejected the state secrets privilege [actually, this is true for more than one reason, many of which we haven’t discussed]; (c) Walker did have a choice on granting relief to the plaintiffs — he could have decided that their prima facie evidence was insufficient, or he could have sua sponte considered any constitutional objection he wanted to (and, knowing Judge Walker a bit, he’s exactly the kind of Judge to do something like that).

On the other hand, here was Greenwald’s statement in his column:

“Kerr is wrong when he says that this ruling does not constitute a decision that the Bush NSA program was illegal — it does exactly that, because the plaintiffs offered evidence and arguments to prove it was illegal and the Obama DOJ (like the Bush DOJ before it) failed to offer anything to the contrary — but he ‘s right that Judge Walker did not focus on the merits of the defenses to the NSA program because the Obama DOJ (like the Bush DOJ) refused to raise any such defenses. “

I don’t see anything wrong with Greenwald’s statement, but a lot wrong with Kerr’s. I guess maybe if you assume that Greenwald meant that the program was found illegal on its face or in all circumstances, Greenwald would be wrong — but that’s not what Greenwald actually says. Meanwhile, what Kerr actually says is, in fact, wrong.

438

Anderson 04.08.10 at 12:43 am

Ok, let’s look at what Kerr actually wrote that is “quite obviously incorrect” according to Robert and LB:

Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.

As I said, this is sort of a technical objection: It’s quite right that the plaintiffs prevailed in their legal claim that they were illegally subject to surveillance. And as I have written many times before, I happen to agree that the Bush Administration’s arguments were quite weak. But the opinion isn’t quite what the Times is reporting: The decision today wasn’t actually about the lawfulness of the warrantless surveillance program.

Kerr says that the district court thus did not reach any broad legal conclusions about whether the TSP was “illegal” tout court; rather, it concluded that the plaintiffs in question had been surveilled without a warrant, and that in the absence of any argument to the contrary, this violated FISA.

I can see LB’s and Robert’s point, having myself agreed with it; and I think we are all being thrown off a bit by the procedural weirdness, where the feds had previously argued the Article II theory and then, with the change in administrations, dropped it like a rock. Frankly, the more I think about it, I’m not sure what it even *means* to say that “the program is illegal.” If the feds resume TSP tomorrow, are they in violation of the district court’s opinion? Is that even a meaningful question?

So I disagreed with Kerr on this point, then agreed, and may have my mind changed again by arguments here or elsewhere. Now, let’s look at what GG wrote:

Kerr is wrong when he says that this ruling does not constitute a decision that the Bush NSA program was illegal — it does exactly that, because the plaintiffs offered evidence and arguments to prove it was illegal and the Obama DOJ (like the Bush DOJ before it) failed to offer anything to the contrary * * *

(leaving out his rather weird comparison to Judge Taylor’s opinion, which has been sufficiently rebutted above). Kerr takes issue with the notion that the fact of the plaintiffs’ “offering evidence and arguments” bears out those arguments, to the extent that those arguments were not raised by the defense or addressed by the court.

To Kerr, the ultimate legality of the program is thus not litigated, because the feds never argued that it was legal. To GG, the ultimate legality of the program *is* litigated, because relief issued to plaintiffs.

Calling Kerr a “hack” on the basis of this rather subtle disagreement seems pretty obnoxious, doesn’t it?

… Another way to think of it: suppose the district court opinion were actually a Ninth Circuit decision and thus binding on future courts in that circuit. Would the issue of the program’s legality have thus been decided, binding district courts and future panels? Would the feds be barred from arguing in a future case w/ different plaintiffs that the president’s Article II powers trump FISA?

If you think the answer is no, then it seems you agree w/ Kerr; if yes, then w/ GG. Is that a fair statement?

It seems to me that, assuming I’ve stated it fairly, Kerr is right, and there’s no “ruling” on the “legality of the program” per se.

439

Anderson 04.08.10 at 12:44 am

(Ah, crossed w/ Robert, quoting the same scriptures to different purposes.)

440

Heur 04.08.10 at 12:54 am

I think I see the problem. First, let me address the portion you quoted from Kerr’s post. You’re omitting the following paragraph where he clarifies what he means, and states clearly that the plaintiffs prevailed in their claim that they were subject to illegal surveillance. Walker has no choice because plaintiffs have shown the electronic surveillance to have violated FISA, and the government has offered no defense. If you read the statement as “Walker has no choice because he simply has to go along with whatever plaintiffs claim, since the defendant has said nothing,” then I understand why you find it very problematic. But that’s obviously not what was meant.

But, more importantly, the dispute HERE between Greenwald and Kerr on the legal question really begins around comment 123 (the argument we’re all discussing here isn’t captured in the comparison of their columns). Kerr has expressed his view that the court was not ruling with respect to the merits of the Bush Administration’s arguments, and asks in 123:

The Bush Administration’s view was that the monitoring was legal because either Article II or the AUMF trumps the plaint text of the FISA statute. That was the legal debate we had in 2005-2007, and that everyone was focused on Can you point me to the part of the opinion that rejects that argument?

Greenwald, in 128, replies:

The Court didn’t explicitly discuss those arguments because the DOJ didn’t raise them.

BUT: the plaintiffs raised them by submitting to the court what the Bush administration’s arguments were (Article II and AUMF) and lengthily proving they were wrong:

See pages 16-31 of the Plaintiff’s Brief in Support of Summary Judgment.

The Court said that the plaintiffs proved they were subject to illegal surveillance (see pp. 2-3 of the decision), which is necessarily a ruling that the plaintiffs were right and therefore were entitled to judgment.

I honestly think this stems from your ignorance about how civil litigation works—ignorance you’ve previously admitted. If a party doesn’t raise arguments, a court won’t spent much time on them – or even any time—- but the Court is still necessarily ruling on them by granting plaintiffs Summary Judgment.

You see where he gets himself into trouble? And then we go round and round for a while. But you can see why, eventually, this came down to the question of whether the court, in ruling that plaintiffs were subject to unlawful electronic surveillance, had actually ruled on, or even considered, the arguments put forth by the Bush Administration.

As a side note, I do think Greenwald dramatically overstates the importance of the decision in his column, and I think the overstatements derive from his belief, demonstrated in 128 above, that the court in some way had to contend with the Bush Administration’s arguments as raised in the plaintiffs’ brief. If I understand you correctly, you agree that the court did not.

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Heur 04.08.10 at 12:57 am

Sorry. Everything from the colon following “Greenwald, in 128, replies” to “ruling on them by granting plaintiffs Summary Judgment” should be italicized as Greenwald’s comment.

442

Rich Puchalsky 04.08.10 at 1:01 am

“Calling Kerr a “hack” on the basis of this rather subtle disagreement seems pretty obnoxious, doesn’t it?”

Take it up with Henry. Henry is the one who repeatedly used the word “hack” in order to try to depict Greenwald as saying it. As far as I can remember, Greenwald has never used the term, and indeed went to great lengths to explain exactly what his denunciation of Kerr was about. It’s not his problem that some people apparently can’t read ordinary English language sentences. Or rather, since they obviously can read, that they clearly don’t want to read.

443

politicalfootball 04.08.10 at 1:06 am

Anderson, just curious, are you ready to answer 301? Kerr endorses your position on this, but Kerr is cagey enough not to answer questions about it. How about you?

444

Rich Puchalsky 04.08.10 at 1:10 am

By the way, since the piety crisis is still ongoing, I have a question for Orin Kerr, if he’s still reading this. Does he actually think torture is bad, normatively?

I ask because, looking at past Kerr discussions of torture, he seems to be focussed on whether it’s legal. As far as I understand (not being a lawyer), it’s illegal because we have signed treaties to that effect. If you look at the history of blog discussions, there was apparently a period of time before Kerr became convinced that waterboarding fit the legal definition of torture, and was therefore illegal.

So here’s a hypothetical for Kerr. Let’s say that there are people suspected of being the same Muslim terrorists who want to blow up New York as in your hypothetical that aaron linked to a couple of times. Let us further suppose that waterboarding is perfectly legal. Do you think that these people should be waterboarded?

Now let’s say that the police are really very confident that these suspicious Muslims are terrorists. They are further confident that extreme torture will elicit the details of the bomb plot, potentially saving many lives. Let’s assume, for the sake of the hypothetical, that torture of any sort is legal. Would it be the right thing to do for the police to use some really classic method of torture — breaking the terrorists on the rack, say?

445

Anderson 04.08.10 at 1:20 am

Sorry. Everything from the colon following “Greenwald, in 128, replies” to “ruling on them by granting plaintiffs Summary Judgment” should be italicized as Greenwald’s comment.

Yah, you have to use [i] tags for each separate graf. Prevents the Demon of Italics from taking over the entire thread from that point down.

… 301 — wow, that’s a long time ago. Let’s see:

Seriously? So the plaintiff wins the space alien suit if he brings it before your judge?

No, I think not. The instance I had in mind had to do with whether a plaintiff had filed her Title VII complaint timely or not. I drafted an opinion that held she had not done so by her own arguments, but I found an argument not addressed by either side by which the court could hold that she had done so. The judge gave it back to me and said we were not going to make either side’s arguments for them.

I wondered at the time if that were the right thing to do, but successive experience suggests that a court is not unwise to avoid deciding cases on theories not argued by either side. I was called in to brief a products-liability case that went off the rails, and my state’s intermediate court of appeals issued a ruling based on a theory that neither side had briefed, and that was totally batshit. There is much to be said for a court’s hesitating to venture where the ground has not previously been prepared by the adversarial system at work.

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Anderson 04.08.10 at 1:36 am

Heur quotes GG: If a party doesn’t raise arguments, a court won’t spent much time on them – or even any time—- but the Court is still necessarily ruling on them by granting plaintiffs Summary Judgment.

Does anyone here really believe that to be the case? I think *that* is more obviously incorrect than anything Kerr wrote.

447

Orin Kerr 04.08.10 at 3:04 am

Does he actually think torture is bad, normatively?

I think torture is horrible, evil, terrible, bad, wrong, and awful.

I understand the next question to be (at bottom) about whether I am a utilitarian. Let’s be more specific about the hypo, and then turn to the answer. Assume we have a known terrorist mastermind who we know has information about a plan to capture and then torture to death Rich Pulasky, ScentofViolets, LizardBreath, and politicalfootball, together with their spouses and all of their children.

Let’s assume, just for the sake of argument, that if we waterboard the terrorist, we are pretty sure that we can learn about the plot and save Rich Pulasky, ScentofViolets, LizardBreath, and politicalfootball, together with their spouses and families, from, being caught and tortured to death. Also assume that when the terrorists torture a person to death, it is a particularly and astonishingly cruel form of torture. And assume, as Rich suggests, that waterboarding is legal.

So the question is, do we decide not to waterboard the terrorist? That is, do we let Rich, Scent, LizardBreath, and political football, together with their families, die an extraordinary horrible death at the hand of torturers? Or do we waterboard the known terrorist (which is lawful in our hypo) and save Rich, Scent LizardBreath, and politicalfootball, together with their spouses and children?

I say we waterboard, and I’m curious what Rich, Scent LizardBreath, and politicalfootbal would say we should do. (Seriously, I would be interested in your answers, if you’re still in the thread.)

Incidentally, some might try to fight the hypo, and say that it’s unrealistic, or that we wouldn’t know all these things. But that objection would bring to mind the old story attributed to Churchill and the socialite:

************
Churchill: “Madam, would you sleep with me for five million pounds?”
Socialite: “My goodness, Mr. Churchill… Well, I suppose… we would have to discuss terms, of course…”
Churchill: “Would you sleep with me for five pounds?”
Socialite: “Mr. Churchill, what kind of woman do you think I am?!”
Churchill: “Madam, we’ve already established that. Now we are haggling about the price.”
**********

448

Orin Kerr 04.08.10 at 3:06 am

Does anyone here really believe that to be the case? I think that is more obviously incorrect than anything Kerr wrote.

Uh oh, looks like Anderson has become a Bush Apologist, too. ;-)

449

Anderson 04.08.10 at 3:16 am

Prof. Kerr’s response to RP raises the issue of whether torture is wrong because it doesn’t work, or wrong because it’s Just Wrong.

I think that if torture *were* a reliable method of obtaining information, we would have fewer qualms about it, and our discussions would center more upon whether we were torturing the right people, with no permanent ill effects, etc.

But common sense, plus centuries of experience, have taught us that torture is *not* reliable. Which is why the hypo, like the ticking-bomb example (which it basically amounts to), rests on a false premise: that torture will allow us to save people. And why the possibility of obtaining good intel by torture is sufficiently small that, combined with its repugnance, civilized nations have been comfortable with a ban on torture (even if the UK, Israel, and the U.S., for instance, have proved themselves willing to torture anyway).

That distinguishes torture from the Churchill anecdote (a fav of mine, tho this is the first time I’ve seen it attributed to WSC). Conceding that one would torture if torture worked differently than it does in real life is not conceding anything about torture in the real world; we are not haggling over price. It’s like saying I would cheat on my wife, if I were married to a woman who not only tolerates cheating but downright insists on it. That science-fiction scenario tells me nothing about whether it’s okay to cheat on my real wife.

450

Henry 04.08.10 at 3:19 am

Anderson’s point here is made “rather more pungently”:http://crookedtimber.org/2004/06/18/by-the-power-of-stipulation-i-have-the-power/ by Belle Waring.

451

Jeffrey Kramer 04.08.10 at 3:20 am

‘I can construct a fantasy scenario in which the consequences of rejecting torture are so horrendous that the hypothetical avatars of real-life torture opponents might, regretfully, agree to employ it in this case.

“Therefore, real-life torture opponents are hypocrites.”

452

Anderson 04.08.10 at 3:25 am

Belle: Now, does anyone think you shouldn’t torture that one child to death, under the circumstances? No.

Hm. Dostoevsky’s Ivan Karamazov posed that question (mutatis mutandis) to Alyosha, and Alyosha’s answer to Belle was “yes.” But yes, Belle does put the matter more effectively than I.

453

Anderson 04.08.10 at 3:27 am

I can construct a fantasy scenario

Note that RP’s question to Kerr was itself a fantasy scenario.

454

Orin Kerr 04.08.10 at 3:28 am

Rich writes:

*********
For your information, Kerr agreed that he is an apologist. That one was, far, far back. For the rest, I didn’t “ascribe motives to Greenwald”, I summarized a comment than he made. Nor do I see how his completely understandable moral revulsion at Kerr’s defense of governmental surveillance makes Greenwald a hack. It’s quite normal for people to be repulsed by people who honestly defend governmental misdeeds. Note that I am not using “misdeed” as a legal term.

As for whether Kerr is an advocate for a cause, well, I’ve only referred to his Senate testimony five or six times now.
********

Rich, these comments are so ridiculous it’s hard to know where to begin.

First of all, I expressly said that I was a sometimes-apologist *if* we assume Greenwald’s very odd definition of sometimes-apologist as being some one who sometimes agrees or defends a position. By that account, I should add that I am also a cheeseburger, if we define a cheeseburger as a law professor.

Second, it’s total bs to say that I defended the TSP. I have been saying it was illegal for years. I have also been an outspoken critic of John Yoo and his Article II theories:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=103×430199

Third, my testimony on the Patriot Act happens to be accurate. It’s true that it was modestly pro-government in substance, but that was because the government happened to be correct (as the civil liberties groups knew — they were being kind of dishonest in pretending that the Patriot Act was a bigger deal than they knew it was).

Further, to the extent you want to say I should be judged by my views of civil liberties, why not mention my Senate Testimony on habeas jurisdiction at Guantanamo Bay?

http://judiciary.senate.gov/hearings/testimony.cfm?id=2785&wit_id=6472

Or why not mention my pro-privacy pro bono work on behalf of the ACLU, EFF, and various other privacy groups in a critical Internet wiretapping case?

http://epic.org/privacy/councilman/kerr_amicus.pdf

To be clear, I’m not saying I’m always on the pro-civil libertarian side. On the whole, my views usually are pretty centrist on these issues, and sometimes I end up one side and other times on the other side. But I think that’s a long way from being a “hack” on favor of a particular “side.”

455

Jeffrey Kramer 04.08.10 at 3:29 am

Assume we have a known agent for the Borg who we know has information about a plan to invade earth and assimilate humanity. Let’s assume, just for the sake of argument, that we tracked him to somewhere in Cairo, and we know that if we annihilate Cairo with nuclear weapons, we fill foil the plot and save humanity. Also assume that the Borg are really, really evil.

Is it not clear, then, that any dogmatic opposition to the slaughter of millions of innocent human beings is precisely the sort of fanatical bloggofascist partisanship that Judge Learned Hand prophetically warned against?

456

Orin Kerr 04.08.10 at 3:30 am

“Therefore, real-life torture opponents are hypocrites.”

I don’t follow: Does that mean you would allow the waterboarding in that case or not?

457

Orin Kerr 04.08.10 at 3:33 am

(Jeff Kramer, as an aside, you’re perfectly free to say that you would allow waterboarding in that hypothetical case but would not allow it in other cases that are more realistic. Is that your position?)

458

Rich Puchalsky 04.08.10 at 3:37 am

I see that you’ve changed the hypothetical from one that is conceivably possible (a country in which torture is legal) to one that is not conceivably possible (a world in which we have sure knowledge about people’s future plans, and about their response to future events).

Note that in the hypothetical that I described the Muslims are “suspected” and “the police are very confident that they are terrorists” in the two cases. Of course, the police are often very confident that people have committed crimes in cases in which those people have not actually committed those crimes. This is why they are called “suspects”.

Note also that your hypothetical includes a very high degree of knowledge about future events. If we do not waterboard, your hypo says, we are sure that all these deaths will occur. The future terrorists won’t change their minds or be stopped by accident or by police action (other than torture) — they are foredestined to kill. The hypo would really be pretty much the same if you asked whether they should be strangled at birth.

So I’d really have to think about the science fictional elements of this one before I could answer. It’s rather like one of those “Do you bomb the kindergarden that has baby Stalin in it?” short stories.

But consider what the hypo says about the creator of it — what I suspected, actually. It appears that while you’re a legal expert, you at base don’t really remember why we have criminal trials in the first place. You laugh, in advance, at the idea that we wouldn’t know guilt before trial, and suggest that saying so would be cheating the terms of your hypo.

Like I said, pretty much what I suspected.

459

LizardBreath 04.08.10 at 3:39 am

Orin — if you haven’t read the post Henry links in 450, it may illuminate why people are making fun of you for demanding answers to your hypo in 447. If you have read it, and are still determined that those answers are going to be of any argumentative use, I don’t know what to tell you.

460

politicalfootball 04.08.10 at 3:40 am

No, I think not.

Well of course not. It was unfortunate, then, that you raised your claim in that context.

Let’s understand this a little better. Kerr has endorsed your previous reading, and I think it would be instructive to make the sequence of the argument explicit, so that we can see how Kerr’s con works, and how you got caught up in it.

I quoted Kerr’s space alien hypothetical (from his 107) in my 297. In discussing that hypothetical, Kerr stated that a judge would only consider arguments brought before him, and that a default judgment in the plaintiff’s favor would not mean an endorsement of the plaintiff’s claims. It would merely mean (he argued) that the judge felt compelled to rule that way, not having availed himself of arguments that weren’t brought before him.

So I repeated Kerr’s argument, and offered the (admittedly non-expert) opinion that any judge would, in fact, consider arguments not brought before him or her in such a case. This judge would consider those arguments and reject the claim – and if the judge didn’t do so, as in Kerr’s hypothetical, this would be an explicit endorsement of the claim – contrary to what Kerr said.

With that setup, I asked:

Do you really think that judges consider only arguments that are brought before them?

Which you quoted in 300, and responded thus:

As I wrote upthread, I worked for a federal judge who took precisely that position.

Well, no, as you now acknowledge, you didn’t work for such a judge. The judge that you worked for took the position that you explained in 445, not Kerr’s position – not the position that I rebutted in 297.

I’m pretty sure Henry has ruled Kerr’s 107 to be trivial, and therefore unworthy of analysis for it’s accuracy and good faith. So there’s a case to be made that your confused endorsement of Kerr’s point is even more trivial, and that I’m being unhelpful by belaboring it.

But the point I’d like to make is that Kerr’s brand of nonsense is insidious, in that people like yourself, arguing in good faith, can be lured into adopting bizarre arguments.

You remarked above that Kerr’s failure to acknowledge his errors was a failing on his part, but a humanly understandable one. I’m here to tell you that Kerr bulldozes through without correcting obvious nonsense because it works. His obstinacy is not (as they say) a bug; it’s a feature. People can be persuaded to adopt crazy positions, like the one you took in 300, precisely because Kerr had been unwilling to admit that his previous claim was nonsense.

(I am indebted to the late, lamented Emerson* for pointing out that the “reality-based community” has had its ass handed to it by people who behave like Kerr. Aggressive, unapologetic unreality can be remarkably powerful. The marketplace of ideas, like some other marketplaces, has proved shockingly unreliable.)

*He’s dead to Crooked Timber.

461

Anderson 04.08.10 at 3:43 am

Prof. Kerr’s hypo reminds me of the ethics-class question about the death-squad commander who tells me that if I won’t shoot one villager, he will have 20 villagers executed.

I annoyed my ethics professor by saying that (1) I had no plausible assurance the commander would keep his word, and (2) if *he* killed 20 people, it was *his* fault, whereas if *I* killed one person, that was *my* fault. Either (1) or (2) struck me as sufficient reason not to kill the one villager.

Which I relate merely to reiterate that contrived hypos do not actually tell us much about the right thing to do in the real world.

The atrocious thing about Cheney and Addington’s torture program was that, in fact, there are pretty good interrogation methods that don’t torture, abuse, or humiliate prisoners, and instead of these methods, we used torture techniques that were, quite literally, copied from methods designed to elicit false confessions, and which were thus the exact opposite of what our national security required. There was never any effort to use professional interrogation methods, apparently — this is my inference — because the CIA had no trained interrogators, and the FBI did, so that such an approach would have ceded valuable bureaucratic turf to FBI.

If none of this had been the case, and some desperate CIA spook had, say, tortured KSM on the spot of his capture in Karachi, based on a good-faith but mistaken belief that KSM knew of a devastating terror attack about to take place, we would probably agree that the spook was mistaken, but I don’t think we would have anything like the outrage we have over a torture program that was not only gratuitous but, if anything, counterproductive to our national security. (Sorry for the “our,” non-USAers.)

462

Anderson 04.08.10 at 3:48 am

460: Kerr’s space-alien example was a poor one, as I wrote above. I agreed with the point he was trying to make — that a judge does not rule on all possible arguments when he grants summary judgment to a plaintiff — without agreeing with the specific example. That is to say, I assumed the point that Kerr was trying to make and agreed with that point, but did not mean to say I agreed with the example, which was off-point and unnecessarily distracting IMHO (Rule 55 not Rule 56, etc.).

Since I’ve answered your question, would you like to answer mine at 446? Thanks!

463

Henry 04.08.10 at 3:49 am

Orin – as Belle suggests in the post I linked, one can create a hypothetical in which the sound utilitarian thing to do is to torture an innocent three year old to death. Does this tell us anything useful about whether it is right or wrong to torture three year olds to death? Are we merely negotiating over the circumstances under which torturing three year olds is OK and not OK, as per the Churchill quote?

464

Heur 04.08.10 at 3:55 am

Lizard Breath, Belle’s post is incredibly entertaining, but wouldn’t you say that the hypotheticals are interesting, particularly as we get closer to reality, in that they force us to concede a role for utilitarian criteria that, ordinarily, we might prefer to deny?

465

Jeffrey Kramer 04.08.10 at 4:02 am

Here’s another way of looking at the calculus, if you really want to go full utilitarian on the subject. (I am not a statistician, let me know if I’m making some elementary blunder.) Roughly three thousand Americans have died in terrorist attacks led by Islamists since they started dedicating resources to the project of killing Americans: let’s call it fifteen years. So Islamist terrorism has cost us two hundred extra deaths per year, or one extra life lost per 1,500,000 per year. Broken down in terms of life expectancy per person, assuming a life expectancy of 75 years, that’s an expected loss of life per person of one 20,000th of a year, or roughly a half hour.

Now let’s say we waterboard a hundred alleged terrorists (which — given the government’s record — may mean 80 innocents and 20 actual terrorists, but leave that aside). Let’s say that there is actual, useful information extracted from those interrogations that couldn’t have been acquired without torture (which is almost certainly false, according to the testimony I’ve read, but leave that aside). And let’s say, optimistically, that this information reduces the odds of another 9/11-type attack succeeding in the next fifteen years from 85% to 15%. (I’m not going to accept, even in this type of hypothetical, the notion that this kind of information could reduce the odds of success from 100% to 0%.) That means we’ve hypothetically saved 2,100 lives (3,000 x [.85-.15]) over the next fifteen years, or 140 lives a year, thus adding about 20 minutes to the average life expectancy of the average American.

So, from my perspective, if I’m looking at the torture question as one of general “government efficiency” — i.e., “how well is the government working to serve my interests?” — I would say that the government has tortured a hundred Muslims this year in order to add twenty minutes to my life expectancy.

And my calculated, rational response to this would have to be, fuck, fuck fucking no. I don’t want my government “protecting” me in this way, not even if it brings me an expected life benefit of thirty minutes, or (less plausibly) a whole hour or (absurdly) a whole day, or (impossibly) a whole week. And anybody who would beg the government to “assist” them this way, at these odds (again, assuming my calculations are anywhere near the right range) doesn’t deserve that assistance.

466

Anderson 04.08.10 at 4:03 am

Heur, not to speak for LB, but (to borrow from Kerr) redefining torture as a cheeseburger and then asking if we’re against cheeseburgers, does not tell us much about torture.

It’s intrinsically part of torture that it’s unreliable. If hurting people until they confess actually worked, and had no humane substitute of equal or greater efficacy, then we might well have a place for torture, as did many/most civilizations that believed those propositions to be true. Frederick the Great’s judiciary pitched a bitch when he outlawed judicial torture, because, they squawked, how were they to solve crimes any more?

But we believe that a nontrivial number of torture-induced confessions are false, and that professional interrogation is at least as likely to obtain intel/evidence as is torture. So torture is gratuitously violent and thus cruel.

A hypo that changes the above facts doesn’t ask about torture; it asks about “torture.” That’s my objection to Kerr’s hypo, and to RP’s (why should we believe the police when they say torture will be effective?).

467

Rich Puchalsky 04.08.10 at 4:03 am

What you call “Greenwald’s very odd definition” is in fact the ordinary, dictionary definition. Let’s see Mirriam-Webster: “apologist: one who speaks or writes in defense of someone or something”. It appears that Greenwald is to be classed as very odd for using words.

“Third, my testimony on the Patriot Act happens to be accurate”

Oh really? You selectively edited the ACLU quote in it. It may have met your standards for legal accuracy: I have no idea what those are. But I thought that it was highly deceptive. You asserted that “Most of the Patriot Act consists of minor adjustments to a set of preexisting laws, such as the Foreign Intelligence Surveillance Act and the Electronic Communications Privacy Act”, and quoted the ACLU as saying the same thing. But you took out, from the sentence that you quoted, the part about the ACLU saying that the remaining provisions not being in line with the Constitution.

And you’re asserting that I wrote all sorts of things that I didn’t write. I didn’t say that you defended the TSP, for instance. What you said was that you couldn’t evaluate it normatively because it was secret and you hadn’t read the classified materials. Here are your exact words:

“Take the TSP, for example. Pre FISA-fix, it was illegal, and I was reasonably confident talking about it illegality (at least subject to some assumptions). But is such a program bad from a policy standpoint? I don’t know. I don’t know the real scope of the program, exactly how it works, how effective it is, what the privacy safeguards are used. Never having been read in to the classified program, I don’t know the facts and can’t really answer if the program is desirable or not.”

That is not defense of the TSP. That is, however, defense of governmental secrecy and authority to a ludicrous degree. What you’re saying is that no one who doesn’t have classified access can form a normative judgement about classified programs — not legal judgement, but normative judgement. If they don’t have classified access, they should just shut up about whether they think it’s good or bad. That’s certainly a novel approach to democratic politics.

Lastly, I’ve noticed that you and Anderson keep putting quotes around “hack”. Who are you quoting? Because Greenwald certainly didn’t say you were a hack. He said you were worse.

468

LizardBreath 04.08.10 at 4:08 am

I agreed with the point he was trying to make—that a judge does not rule on all possible arguments when he grants summary judgment to a plaintiff—without agreeing with the specific example

There’s an ambiguity here — as I understand Kerr, he’s arguing not just that a judge does not necessarily rule on the basis of all possible arguments, but something more like that a judge may not rule on the basis of an argument not raised by the party who it favors. That is, that Judge Walker couldn’t possibly have ruled on the basis of the constitutional and statutory arguments for the TSP, because the DOJ didn’t raise them. That seems obviously wrong to me — a judge has the power to rule on the basis of their knowledge of the law, regardless of what the parties brief. A judge isn’t going to grant relief on a patently, obviously legally meritless claim, whether or not the defendant counters it.

The line of Greenwald’s you quote in 446 seems wrong to me as well, but mostly because it uses terminology oddly — ‘ruling on… argument[s]’ isn’t really what judges do. They rule on cases or controversies. So, Greenwald’s wrong to say that a judge necessarily considers or rules on every argument, even the ones not raised — obviously, the judge can’t consider an argument without being aware of it, and I’m not sure what it would mean to ‘rule on’ an argument in this context. But he would be right, I think, to say that by making a ruling, a judge is stating that to the best of his judgment, the universe of applicable law from the Constitution on down requires that ruling. As a matter of practice, a judge may, like yours, be well advised not to rely on legal arguments not briefed by the parties, for fear of making a major error from lack of the parties’ deeper knowledge of the case. But where a judge is certain of the applicable law, they’d be doing something wrong if they issued a ruling that they knew to be contrary to law just because one side put forth an argument for it (as in the tort of soul-stealing) and the other side failed to counter it.

469

LizardBreath 04.08.10 at 4:10 am

(My 468 is to Anderson’s 462.)

470

Rich Puchalsky 04.08.10 at 4:12 am

“That’s my objection to Kerr’s hypo, and to RP’s (why should we believe the police when they say torture will be effective?).”

But I explicitly left that open as an answer. I didn’t specify that the police knew that torture would be effective. Here’s what I wrote:

“Let’s say that there are people suspected of being the same Muslim terrorists who want to blow up New York as in your hypothetical that aaron linked to a couple of times. Let us further suppose that waterboarding is perfectly legal. Do you think that these people should be waterboarded?

Now let’s say that the police are really very confident that these suspicious Muslims are terrorists. They are further confident that extreme torture will elicit the details of the bomb plot, potentially saving many lives. Let’s assume, for the sake of the hypothetical, that torture of any sort is legal. Would it be the right thing to do for the police to use some really classic method of torture—breaking the terrorists on the rack, say?”

Confidence does not equal knowledge. Otherwise, why bother to have trials?

471

Jeffrey Kramer 04.08.10 at 4:13 am

Does that mean you would allow the waterboarding in that case or not?

No I wouldn’t, because fortunately my hypothetical avatar who has been given the choice to torture or not to torture has the mutant power of recognizing that he is actually inhabiting a fantasy world, and so the “lives” he would be “saving” don’t actually exist. Thus the only point to going through with the torture would be to allow torture apologists* back on the real world to chortle about how the anti-torture party has refuted itself, has no principles, has no standing to object to actual torture, etc., etc., etc.

More seriously (and civilly and centristically, I guess): there are times when hypothetical scenarios are appropriate and illuminating, and times when they aren’t. If the latter is the case, one may reasonably refuse to play the game.

*(or “anti-anti-torture extremists,” if you prefer)

472

Anderson 04.08.10 at 4:16 am

What you’re saying is that no one who doesn’t have classified access can form a normative judgement about classified programs—not legal judgement, but normative judgement. If they don’t have classified access, they should just shut up about whether they think it’s good or bad.

What exactly is surprising about this? I thought one reason for laws was to fence in our policy representatives in those circumstances where we cannot, as a practical matter, know what they’re up to.

If the TSP were a kick-ass program that busted dozens of terror plots at little or no harm to innocent persons, then it might’ve been a very attractive program. It would not however have been any the less illegal.

I am also a little puzzled by your obsession with a law professor’s providing normative judgments. There’s a level where this is inescapable, when one is asked to write memos legitimating torture for instance. But does a law prof have any special expertise in normative judgments, above and beyond the average person? I am not sure why this should be the case.

473

Anderson 04.08.10 at 4:22 am

But I explicitly left that open as an answer. I didn’t specify that the police knew that torture would be effective.

But why is it legal, then? I suppose you’re trying to confine the issue to what’s “normative,” but then the hypo just gets confusing.

Regardless, tho I’m not the person you’re asking, I wouldn’t torture the prisoners, because if it’s a ticking-bomb scenario, all they have to do is send me on wild-goose chases until the bomb blows, and if we have the luxury of time, then better interrogation methods are available and preferable.

474

Heur 04.08.10 at 4:23 am

I’d take issue with the validity of somehow distributing the total number of lost years among the entire population, and using the apparent importance to an individual of the lost time as a measuring stick for the value of each life.

Most importantly, the value in lives doesn’t aggregate quite like that. 20 minutes of leisure time, broken apart a span of time, may come to nothing but a greater knowledge of sitcoms. But 20 minutes of time added consecutively in the life of a human being contains massively more value. The “life time” in both cases, even if the same, contain very different amounts of value.

Really, we can leave aside the issue of torture for a moment, and concentrate fully on the costs of the predicted terrorist attack in your scenario. So, 2100 lives, valued at, say, 10 million dollars per life, comes to 21.0 billion dollars. We still have to factor in the costs of the pain suffered by the grieving families and friends, the economic damage, the likely costs of various wide-ranging responses (it would be naive, in my view, to suppose that a second 9/11 attack would not require, politically, some dramatic military and security response), and so forth. In the end, and I won’t pretend to do the math here, the number would be extraordinarily high, probably closer to the wide neighborhood of 200 billion to 1 trillion (yes, off the top of my head, and so take it for everything that it’s worth).

475

Anderson 04.08.10 at 4:30 am

That’s always been the problem with utilitarianism — it asks you to quantify things that can’t be quantified.

476

Jeffrey Kramer 04.08.10 at 4:32 am

(I see that in 456 I was reinventing the wheel used by Belle Waring, linked to in 450. Use hers rather than mine.)

477

Orin Kerr 04.08.10 at 4:34 am

The point of modifying Rich’s hypothetical, in case it’s not obvious, is to see whether we are at bottom utilitarians or not utilitarians.

If we all agree that we are at bottom utilitarians, then the question becomes how we each measure the costs and benefits of waterboarding, torture, etc. In that case, we’re all basically doing the same sort of weighing, and while we can of course disagree strenuously on where the line should be drawn, it doesn’t work particularly well for some utilitarians to assert the moral high ground and claim that the other utilitarians are evil. On the other hand, if we’re not utilitarians, then we are perfectly justified in our view that the other side is evil, but we’re stuck with answering the hypo I posed by saying, “I would refuse to allow the waterboarding.”

I’m just trying to get a sense of where you all fit in to that. suppose the third option is to fight the hypo as absurd and claim the moral high ground anyway without answering the question, which seems to be a favored method in this comment thread.

(By the way, are we all in agreement by now that I was right in my view of Judge Walker’s opinion, and that Glenn Greewald was wrong?)

478

LizardBreath 04.08.10 at 4:38 am

(By the way, are we all in agreement by now that I was right in my view of Judge Walker’s opinion, and that Glenn Greewald was wrong?)

No, and I can’t see how you could have read the last four hundred and seventy six comments to think so.

479

Heur 04.08.10 at 4:42 am

Anderson writes Heur, not to speak for LB, but (to borrow from Kerr) redefining torture as a cheeseburger and then asking if we’re against cheeseburgers, does not tell us much about torture.

It’s intrinsically part of torture that it’s unreliable. If hurting people until they confess actually worked, and had no humane substitute of equal or greater efficacy, then we might well have a place for torture, as did many/most civilizations that believed those propositions to be true. Frederick the Great’s judiciary pitched a bitch when he outlawed judicial torture, because, they squawked, how were they to solve crimes any more?

I view the torture question as having two components. There is the empirical question: under what circumstances does the use of practices x, y, z… produce truthful responses, in what amount of time, with what amount of deception, etc. I think the empirical question is extremely complicated.

Then there is the ethical question. Given empirical effectiveness x, y, z…, under what circumstances would the use of torture during an interrogation be ethically acceptable, or, even, obligatory?

The hypotheticals can be useful with respect to the ethical question.

There’s uncertainty in any endeavor, but I simply don’t know that, under all circumstances, in all permutations of an interrogative approach, the value of an interrogation approach that used torture would be insignificant. This strikes me as something difficult to determine, and I’m not sure it’s a road of inquiry we want any scientists to travel.

Now, if torture is defined as simply “the infliction of pain at progressively more severe levels until the subject communicates an answer” then I agree that it’s unlikely to be useful. But, that’s not really the question at hand. The question is whether torture, as used as one component of an interrogation approach, can be contribute significantly to the effectiveness of the interrogation in way for which we cannot substitute other components. The complexity of the issue, on the empirical side, is what makes me cautious in concluding strongly in one direction or the other (again, strictly with respect to the empirical question).

480

Rich Puchalsky 04.08.10 at 4:43 am

Anderson, firstly, the whole reason for illegality of programs like this, when you come right down to it, is that ordinary people can’t evaluate what the program is doing. It’s very, very basic to American political theory that we don’t trust an executive to make all the decisions for us and take it on trust that these decisions will be for our benefit. We do permit classification of military secrets, of course. But for a secret program where what is known about it includes that it monitors domestically, the fact that you can’t evaluate it without access to classified material is itself a large reason why you can say that it’s normatively bad. Someone, especially a law professor, who is not willing to make that normative judgement has lost sight of why certain things are legal or illegal in the first place.

Secondly, this whole distinction between legal and normative judgement is one that I’ve disagreed with from the start. This is a discussion about politics, not about law only. Politics involves normative judgements. Henry originally talked about how we live in a pluralist society with competition over values. But, in practice, the minute Greenwald attempts to assert a moral claim — well, let’s go back to Greenwald’s comment #255 (if it hasn’t been renumbered):

“I don’t think you’re an apologist for Bush radicalism because it produces personal benefits for you. I think you do it because you actually believe in the rightness of most of what they did. You seem to think that’s better; I think it’s worse.”

Greenwald isn’t saying that Kerr is a hack, if “hack” connotates dishonesty, lying-for-hire. But Henry and Kerr really seem to want him to be calling Kerr a hack. Why?

481

Orin Kerr 04.08.10 at 4:47 am

I am also a little puzzled by your obsession with a law professor’s providing normative judgments. There’s a level where this is inescapable, when one is asked to write memos legitimating torture for instance. But does a law prof have any special expertise in normative judgments, above and beyond the average person? I am not sure why this should be the case.

I think this goes back to the point of Henry’s original post, oh, 480 comments ago. Greenwald and his readers see the world as a battle of good versus evil. If you’re going to do that, you’re going to conclude that disagreement with you usually means the other side is evil. I think what drives Greenwald so crazy about the centrists he likes to target (whether it’s me, Cass Sunstein, or someone else) is that they sometimes agree with him and sometimes disagree with him — and yet when they disagree with him, it’s not obvious that they’re evil.

This is just speculation, but I would guess that the deep interest in knowing my normative judgments is to try to uncover some belief, however ancillary, that can somehow be seen as evil to be able to taint me on the whole as evil (and therefore not believable, not credible, etc.) when I happen to disagree with Greenwald and his views. I suspect that explains why Greenwald repeatedly misrepresents my views of the Al-Marri case, and why he refuses to correct his error when confronted with it directly as Henry did above: Greenwald has settled upon my views of Al Marri as his go-to case that I’m evil, and his need to taint me with some kind of evil views is more important to him than his interest in representing my views accurately.

That’s my best guess, at least.

482

Orin Kerr 04.08.10 at 4:55 am

Glen Greenwald, in comment 205, addressed to Orin Kerr

***********************************
Wow -this is the most dishonest thing I’ve ever seen you write, and I’m so glad you did it at Henry’s blog as he’s defending you as an honest, reasonable man who argues in good faith and deserves respect.

. . . . You have to know that I didn’t say that. I don’t think you’re dumb, so the only alternative is dishonesty.

So – as usual – you’ve completely distorted what I said in a way that literate person can see. Others have already explained this to you.

You just are too proud and eager to deny that the Bush DOJ was found to have engaged in crimes to admit this. There’s no way that you don’t see it.”
**********************************

Rich Pulasky, at comment 480:

**********************************
Greenwald isn’t saying that Kerr is a hack, if “hack” connotates dishonesty, lying-for-hire. But Henry and Kerr really seem to want him to be calling Kerr a hack. Why?
**********************************

483

Orin Kerr 04.08.10 at 4:57 am

LizardBreath,

I see. How about this question: Are there any commenters here who went to law school who still think Greenwald was right?

484

LizardBreath 04.08.10 at 5:03 am

Same answer.

485

politicalfootball 04.08.10 at 5:03 am

Since I’ve answered your question, would you like to answer mine at 446? Thanks!

To review, you were incredulous in 446 at this statement, which struck you as obviously false:

If a party doesn’t raise arguments, a court won’t spent much time on them – or even any time—- but the Court is still necessarily ruling on them by granting plaintiffs Summary Judgment.

Now you didn’t direct this question to me, and I’m not sure I understand the context exactly. As we’ve seen with your error on the judge who only considers arguments that are brought before the court, context is really important.

If we’re going to evaluate this statement in the context of Kerr’s space alien argument, then I’ve already answered the question: If a plaintiff goes before a judge and argues that space aliens stole his soul and he’s therefore entitled to 100 bucks, and the judge gives him the award, it seems pretty clear that the judge is actively endorsing the existence, for legal purposes, of space aliens and souls, and the potential theft of the latter by the former. Kerr’s answer is the opposite.

If Kerr is right, then why would your judge – the one who never considers arguments that aren’t presented – rule against the uncontradicted testimony of the soul-theft victim?

486

Anderson 04.08.10 at 5:04 am

Anderson, firstly, the whole reason for illegality of programs like this, when you come right down to it, is that ordinary people can’t evaluate what the program is doing.

Agreed. I think I said that.

This is a discussion about politics, not about law only.

Fine, but the answer to the legal question is not thereby the same as the answer to the policy question (and policy is different from “normative,” at least if we’re *not* all utilitarians). The torture memos were bad because they approved of torture. They were also bad because their legal reasoning sucked.

GG: “I don’t think you’re an apologist for Bush radicalism because it produces personal benefits for you. I think you do it because you actually believe in the rightness of most of what they did.

Here, GG was simply making shit up; I have no idea how GG thinks he can conclude that Kerr “believes in the rightness of most of what they did.”

… Prof. Kerr’s effort to reduce it all down to the utilitarian calculus continues not to persuade. Suppose that Evil Guy will blow up Manhattan unless I rape his prisoner. That is not a terribly helpful example if we are asking whether rape is always wrong.

As it stands, his insistence on the hypothetical suggests how John Yoo could’ve rationalized torture to himself. And then, once we’ve decided that torture is acceptable, the hypo becomes “is it right to write a competent memo that finds torture to be illegal, even tho it will probably save lives, or is it right to fudge the analysis and permit the life-saving torture to proceed?” Etc. etc.

487

Anderson 04.08.10 at 5:07 am

If we’re going to evaluate this statement in the context of Kerr’s space alien argument, then I’ve already answered the question

Uh, no. I’ve already disclaimed the space-alien example, and I’m not asking about it now. I’m asking whether GG correctly stated the law in the passage I quoted.

I am sorry for the misunderstanding that led you to think I was buying into the space-alien example in all its details, but I think I’ve been sufficiently clear that I am not doing so. If you’re not going to answer my question, you can just say so.

488

Rich Puchalsky 04.08.10 at 5:08 am

I took Greenwald’s later comment to be more thought-through, less exasperated. But if you want to say that he’s accused you of dishonesty too because of that comment, that’s fine. It’s not what he wrote in the original blog post that Henry so disagreed with and equating to calling you a dishonest hack. Henry goes beyond disagreement with Greenwald and suggests that there is something illegitimate about Greenwald finding someone else’s policy positions revolting.

489

Isocrates 04.08.10 at 5:12 am

… I would guess that the deep interest in knowing my normative judgments is to try to uncover some belief, however ancillary, that can somehow be seen as evil to be able to taint me on the whole as evil (and therefore not believable, not credible, etc.) …

I don’t know about evil, per se, but you pissed away your credibility, by repeatedly deploying bad-faith tactics well documented by others here, starting a couple hundred comments ago.

(By the way, are we all in agreement by now that I was right in my view of Judge Walker’s opinion, and that Glenn Greewald was wrong?)

Sigh. Perhaps you were correct on the technical issue, all along, but coming to that understanding does next to nothing for your credibility now, in light of your tactics along the way–you’ve done little to refute the accusation that you argue in bad faith. So even if your critics here concede your technical victory over Greenwald, and even if in future some controversy arises again and your claims about that happen to be right also, why should anyone take the time to give your future arguments a hearing in order to understand & be persuaded that you’re right, given your credibility has been shot to hell?

490

Anderson 04.08.10 at 5:20 am

The problem with the space alien example, to reiterate (it’s been a long thread), is that a complaint has to state a claim on which relief can be granted. Even if the defendant doesn’t answer — which on this example might be a prudent conservation of resources — there’s no claim stated. Googling, I find this, ironically from a memo of law defending Cheney vs. a claim he was responsible for 9/11:

It is well settled that a district court may dismiss a frivolous or delusional
complaint, even in a case, such as the present one, where the plaintiff is not proceeding in forma pauperis. Fitzgerald v. First East Seventh Street Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that the authority to dismiss frivolous cases applies not only to in forma pauperis cases but also to cases brought by fee-paying plaintiffs); Cummings v. Giuliani, No. 00 Civ. 6634 (SAS), 2000 WL 1597868, at *2 (S.D.N.Y. Oct. 24, 2000). The power to dismiss frivolous claims extends not only to “legally frivolous” claims, but also to
“factually baseless” claims: those based on allegations that “rise to the level of the
irrational or the wholly incredible.” Denton v. Hernandez, 504 U.S. 25, 32–33 (1992); accord Neitzke v. Williams, 490 U.S. 319, 327–28 (1989) (factually baseless claims include “claims describing fantastic or delusional scenarios”); Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (same).

Hence Prof. Kerr’s example was not a helpful one.

491

clod Levi-Strauss 04.08.10 at 5:43 am

Socialite: “Mr. Churchill, what kind of woman do you think I am?!”
Churchill: “Madam, we’ve already established that. Now we are haggling about the price.”

My impression is that the woman was asking if Churchill thought she was an idiot and that Churchill missed the point. On the other hand I’m glad that Henry finally be getting it.

492

Orin Kerr 04.08.10 at 5:43 am

LizardBreadth,

Ok, then what caselaw do these lawyers rely on for their view that Greenwald is right, and how do they distinguish the cases that I cited suggesting to the contrary?

493

Orin Kerr 04.08.10 at 5:45 am

Rich Pulasky:

I took Greenwald’s later comment to be more thought-through, less exasperated. But if you want to say that he’s accused you of dishonesty too because of that comment, that’s fine. It’s not what he wrote in the original blog post that Henry so disagreed with and equating to calling you a dishonest hack. Henry goes beyond disagreement with Greenwald and suggests that there is something illegitimate about Greenwald finding someone else’s policy positions revolting.

After 500 comments, I understand now that is Rich-Pulasky-speak for “Well obviously I was wrong there!”

:-)

494

Jeffrey Kramer 04.08.10 at 5:51 am

@Heur 474

. . . the value in lives doesn’t aggregate quite like that. 20 minutes of leisure time, broken apart a span of time, may come to nothing but a greater knowledge of sitcoms. But 20 minutes of time added consecutively in the life of a human being contains massively more value. The “life time” in both cases, even if the same, contain very different amounts of value.

Would it make a difference if, instead of saying, “I don’t want you to use torture to add twenty minutes of my life expectancy,” I said “I don’t want you to use torture to reduce the odds of my being killed by a terrorist from .0000006 to .0000002″? That way I wouldn’t be ‘translating’ or aggregating lost lives into losses in average life expectancy (a translation you seem to find dicey here). It seems to me, though, that the two ways of talking are still essentially saying the same thing.

The point I really want to stick to is this: the Bush and Obama adminstrations are claiming to be taking certain measures on the behalf of people like me. I have to be the judge (along with my fellow Americans) of whether I want them to do those things, at those costs, for my “benefit.” I could simply say “those things violate basic moral principles, end of discussion.” But then I am told I have to be at least a little utilitarian about these things, so I say, “fine; but if I’m going to see a bit of my soul by becoming an accomplice to torture, I went to see what kind of a bargain I’m getting in return.” And it turns out to be one piss-poor bargain, I must say.

We still have to factor in the costs of the pain suffered by the grieving families and friends, the economic damage, the likely costs of various wide-ranging responses (it would be naive, in my view, to suppose that a second 9/11 attack would not require, politically, some dramatic military and security response), and so forth.

Would these responses make things better or worse? Because to oversimplify just a little, if they make things better, they shouldn’t really count as a cost, and if they make things worse, maybe we shouldn’t do them? Do you really think it’s inevitable that a second 9/11 attack would ‘force’ us to do things which were bad for us?

I know that in real life things aren’t that simple; but if you want to adopt a kind of cost/benefit analysis, I don’t you’re entitled to say, in effect, “we must prevent X, even at staggering cost, because if X happens, we will have to do Y, and Y would be a disaster.”

495

LizardBreath 04.08.10 at 5:52 am

Well, I distinguish the cases you cited relating to affirmative defenses on the basis that they relate, you know, to affirmative defenses that are waived if not pleaded, rather than to ‘defenses’ in the sense of any legal argument a defendant might have put forth. Didn’t we have that conversation already? Not that I’m claiming to have convinced you, but you should know what I argued.

Cases on stipulations also seem to me to be inapplicable, unless the DOJ stipulated to the unlawfulness of the TSP sometime when I wasn’t paying attention. I don’t think any of the cases you cited seemed on point for supporting your initial claim that the decision didn’t “rule that the program was unlawful.”

496

LizardBreath 04.08.10 at 5:53 am

what caselaw do these lawyers rely on

I should say that I’m not speaking for lawyers, plural. Just for myself.

497

Jeffrey Kramer 04.08.10 at 5:54 am

(Paragraph beginning “We still have to factor in…” was Heur’s, sorry I neglected italics. “if I’m going to see a bit of my soul” should have been “if I’m going to sell a bit of my soul”

498

Orin Kerr 04.08.10 at 6:06 am

Lizard Breath,

Those are some very poor grounds on which to try to distinguish my cases, I think. But rather than focus on my cases, lets focus on yours. What cases do you rely on?

499

Orin Kerr 04.08.10 at 6:09 am

I should also ask, LizardBreadth, can you think of any cases in which a district court award of summary judgment for a plaintiff was later considered a ruling on defenses to liability that the defendants didn’t actually raise? Or is this the first time it has ever happened, as far as you know?

500

LizardBreath 04.08.10 at 6:16 am

How about starting with the Rule 56 standard, that a party is entitled to summary judgment if there is no genuine issue as to any material fact, and that “the movant is entitled to judgment as a matter of law.” The standard isn’t “that the movant has made arguments which, if unrebutted, would entitle it to judgment as a matter of law, regardless of their validity.”

501

LizardBreath 04.08.10 at 6:23 am

And if I may ask you a question, are you aware of any cases in which an appellate court overruled a district court for having relied on legal arguments not fully briefed by the parties? Because I’m not, but that’s the consequence of what you’re arguing.

In any case, I don’t accept your characterization of the question.

Judge Walker’s ruling, that plaintiffs were entitled to summary judgment on their claims, based on the unrebutted evidence they put forth that they were subject to surveillance under the TSP, was a ruling that surveillance under the TSP was unlawful. Might he have ruled differently if the DOJ had brief the issues differently? Of course, anything could have happened. But the ruling he made was that under Rule 56, the law is that the program at issue in the case before him was unlawful.

502

Orin Kerr 04.08.10 at 6:44 am

LizardBreadth,

Your reliance on the text of Rule 56 strikes me as frivolous. A party is entitled to judgment as a matter of law based on the legal issues actually litigated by the parties. Do you have any cases in which a court held that a plaintiff’s trying to assert the defendant’s possible defenses were deemed to have raised those defenses for purposes of litigation in the case? Again, what *cases* do you rely on?

You ask, “are you aware of any cases in which an appellate court overruled a district court for having relied on legal arguments not fully briefed by the parties? Because I’m not, but that’s the consequence of what you’re arguing.” I have no idea what you mean by that.

You then say, “Judge Walker’s ruling, that plaintiffs were entitled to summary judgment on their claims, based on the unrebutted evidence they put forth that they were subject to surveillance under the TSP, was a ruling that surveillance under the TSP was unlawful.” That’s just a mischaracterization of the opinion. Judge Walker ruled that the plaintiffs were subjected to electronic surveillance: He did not rule that the plaintiffs “were subject to surveillance under the TSP.” That was what the plaintiffs wanted him to say, but based on my read of the opinion, Judge Walker didn’t actually say that.

Again, what are your cases?

503

Orin Kerr 04.08.10 at 7:14 am

LizardBreadth,

While I still don’t know why you are asking, “are you aware of any cases in which an appellate court overruled a district court for having relied on legal arguments not fully briefed by the parties? Because I’m not,” I figured I would look anyway, and it took me about 2 minutes to find such a case: Jenkins v. Missouri, 216 F.3d 720 (8th Cir. 2000).

From the case:

***********************************
The sua sponte ruling [of the district court] declaring the district unitary and releasing the admitted constitutional violator from further court supervision, without giving notice either to the constitutional violator or the victims or permitting the parties to present evidence and argue these issues, was error.
. . .
We reverse and remand for further proceedings in accordance with this opinion. The mandate shall issue forthwith.
***********************************

http://scholar.google.com/scholar_case?case=756780333757082905&q=216+F.3d+720+&hl=en&as_sdt=20002

HENRY FARRELL – THIS IS AN EXPLANATORY ADDENDUM SINCE A COUPLE OF PEOPLE HAVE EMAILED ME ASKING WHY COMMENTS ARE SHUT DOWN ON THIS POST. TO PREVENT SPAM, CROOKED TIMBER AUTOMAGICALLY CLOSES COMMENTS ON A POST ONE WEEK AFTER IT HAS BEEN PUBLISHED. THERE IS NO WAY FOR US TO PREVENT THIS HAPPENING FOR SPECIFIC POSTS WITHOUT COMPLETELY CHANGING THE ENTIRE SYSTEM. SO COMMENTS HAVE NOT BEEN SHUT DOWN BY ME – BUT BY OUR SYSTEM. SORRY.

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