Restraints on speech

“letting courts restrain movement simply based on people’s even repugnant ideologies and desires.”

The key word here is “courts”. Because, as we all know, the judges who sit in courts are unelected, dictatorial, aristocratic academics who unilaterally manufacture their own laws under the cover of “interpreting” existing laws. Unlike the CIA, who… hey, want cream and sugar?

I think you mean Jane Mayer, not Jane Harman.

It’s a good thing for our rulers that Americans are so alienated from each other and geographically dispersed that civil unrest is extremely unlikely.

There’s a revealing last sentence in George Bush’s statement today thanking Congress for passing the Protect America Act (they never seem to run out of names), the FISA “update” —

When Congress returns in September the Intelligence committees and leaders in both parties will need to complete work on the comprehensive reforms requested by Director McConnell, including the important issue of providing meaningful liability protection to those who are alleged to have assisted our Nation following the attacks of September 11, 2001.

Maybe when this liability protection, which he makes sound like a rental car LDW, comes, then some of these indefinite detainees will be let out.

A quibble. The CIA may have not have had much experience with detention but they certainly had some background on rendition in 1995.

http://www.fas.org/irp/congress/2007_hr/rendition.pdf

Prof. Volokh’s notion of freedom stops wherever the Bush administration wishes it to. As Jim Henley wrote some while back, “It’s not like Eugene Volokh thinks much of me, either, but I’ve always considered his specialty to be showy moral handwringing on the way to siding with Power anyway. The further you get from standard Republican issues like guns and university speech codes, the more likely he is to arrive, with exquisite regret, at the conclusion that the State, particularly when helmed by George W. Bush, must have its way.” The administration wants these restraints. Volokh will end up concluding it should have them.

Orin Kerr has the exact same schtick. It’s amazing — every time he analyzes something, he comes to the conclusion with regret that whatever Bush/Gonzalez/Cheney move is “likely” legal “but we don’t know all hte facts.” (Wonder why we don’t know the facts, jackass?!?!) But then he loves to say how he is for Gonzalez’s resignation, but he did nothing wrong. . . . Volokh’s merry band of hacks is so old.

Orin Kerr in fact has a post:

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

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

Set: “Orin Kerr in fact has a post:…”

And, he;’s a wh*re. Choice quotes:

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

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

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

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

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

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

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

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

Whoa! This is more than prior restraint to speech — this is an issue of isolation to prevent the possibility of communication, and not about information (interrogation methods) illicitly acquired, but about information communicated by the government that you had no opportunity to refuse.

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

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

Anderson, I’ve seen too many people support the Bush administration, while loudly shouting their support for freedom. That, in and of itself means nothing.

Orin Kerr’s “concern” about civil liberties? He just lightly touches on them, and then concludes from nowhere that “the basic idea of letting the government access those communications without a statutory warrant requirement seems appropriate”.

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

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

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

I agree about Orin Kerr, that his stuff is pretty thoughtful and often worth reading and used to think the same of Randy Barnett until he put his name to that shameful amicus brief at the end of the Libby trial.