Greenwald v. Kerr

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.

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

Yeah, but Lillies that Fester………….

“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.

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.

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

[Waves away incense cloud arising from office Barack altar]

…Sorry, what?

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.

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.

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?

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.

Kieran, what’s a Blueshirt?

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.

“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.

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)

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.

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.

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

“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.

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.)

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.

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.

@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.

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.

@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.

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.

glenn = paranoid

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.

@ 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.

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?

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.

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

@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!

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.

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

“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’.

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.

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?

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.

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.

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:

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.

“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.

“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.

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.

>> 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

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.

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.

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.

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?

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.

#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.

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.

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?

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.

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.

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.”

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/

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?

(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.)

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

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

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?

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.

#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.

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.

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.

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.

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.

*******
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.

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.

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.)

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.

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.

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.

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.

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.

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?

“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.

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.

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?

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.

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.

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.

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).

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

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.

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?

“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.

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.”)

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.

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?

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.

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.

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.

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

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.

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?

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.”

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.

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).

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.

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?

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.

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.

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

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

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.

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.

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.

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.

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.

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?

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.

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.

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)

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’.

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.

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.

“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.

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” :)

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.

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.

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.

“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.

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.)

@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).

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.

@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

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.

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.

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?

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.

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.

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.

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.

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.

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.)

Should be “What Greenwald *wrote* was that Kerr has a history of doing this” above.

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.

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.

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:

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.

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.

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.

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.

“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.)

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”).

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?

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.

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?

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.

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.

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.

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.

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.

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.

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.

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.

“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.

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…

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.

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).

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.

“”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.

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.

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.

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.

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.”

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.

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.

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.

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?

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 […]”.

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.

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.

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).

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.

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.

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.

“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.)

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.

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).

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.

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.

“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?

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.

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.

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.

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.

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.

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.

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.

““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.

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.

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 :-)

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.

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.

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.

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.

“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.

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?

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.

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. ;-)

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.

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.”

“Therefore, real-life torture opponents are hypocrites.”

I don’t follow: Does that mean you would allow the waterboarding in that case or not?

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.

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.

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!

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?

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?).

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.

“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?

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.

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).

(I see that in 456 I was reinventing the wheel used by Belle Waring, linked to in 450. Use hers rather than mine.)

(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.

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?

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:

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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?
**********************************

Same answer.

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.

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.

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.

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?

@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.”

what caselaw do these lawyers rely on

I should say that I’m not speaking for lawyers, plural. Just for myself.

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?

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.”

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?