Restraints on speech

by Henry Farrell on August 5, 2007

“Marty Lederman”: on Jane Mayer’s extraordinary – and horrible – _New Yorker_ “story”: on the routinization of torture in CIA ‘black sites’ (I suspect he’s also writing on the basis of his own sources here).

I have repeatedly argued here that there is no justification for keeping secret what interrogation techniques the CIA is permitted to use. In particular, it is absurd to “classify” something that is revealed to people outside the government who have no duty of confidentiality, i.e., to the detainees on whom the techniques are used. Those persons are free to disclose the information to others, as they have now done to Red Cross interviewers. Because of this, it becomes necessary to detain these persons, in isolation, presumably forever, _in order to impose a prior restraint on their speech concerning their knowledge of what our government has done to them._ In a strange sort of circular logic, the interrogation becomes the justification for indefinite detention, even long after the interrogation ends. Thus, as Jane writes, “[t]he utter isolation of these detainees has been described as essential to America’s national security,” so that they cannot reveal what happened to them.

I’d like to see some of our libertarian law professor colleagues give their views on this. For example, “Eugene Volokh”: recently – and correctly in my view – has blogged about the problems in issuing a restraining order on a possible paedophile who hasn’t committed any crimes, talking about the dangers of “letting courts restrain movement simply based on people’s even repugnant ideologies and desires.” Does he believe that imprisoning people without trial (however repugnant their ideologies and desires), torturing them and continuing to imprison them indefinitely while preventing them from having contact with lawyers because they might reveal the methods that have been used to torture them is justifiable? One would hope not, but he and other prominent law professors in the blogosphere have thus far proved “remarkably”: “unwilling”: to express more then a certain degree of perhaps-eggs-must-be-broken-to-make-an-omelette type squeamishness about the topics of torture and indefinite detention before swiftly changing the subject to something more congenial. Some kinds of restraints on free speech are more worthy of comment than others, it would seem (perhaps they’ll prove me wrong).



bi 08.05.07 at 8:10 pm

“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?


Andrew 08.05.07 at 8:30 pm

Some kinds of restraints on free speech are more worthy of comment than others, it would seem (perhaps they’ll prove me wrong).

They’ll prove you wrong around about the time said practices are being overseen by someone who is not on their local team, I would guess.


joejoejoe 08.05.07 at 8:40 pm

I think you mean Jane Mayer, not Jane Harman.


robertdfeinman 08.05.07 at 8:57 pm

Nothing new. During the WWI period the wobblies, union organizers and anti-war activists were routinely rounded up and jailed for their opinions. Legislation was passed making it a crime to oppose the draft. Eugene Debs went to prison for a number of years as a result.

In times of stress the US ignores our civil liberties. The Japanese-American internment is another good example.

What is different this time is that the degree of danger we are facing and the response to it are totally out of proportion. In the examples I cited we were engaged in world wars. This time we are facing a disorganized series of groups with varying capabilities and objectives. Most societies treat this as a police matter.

Either are politicians are really scared witless, or they are using fear mongering to push through an authoritarian government structure. Either way the results are not pretty. Loss of civil liberties leads to a loss of democratic power by the people. Their only avenue at that point is civil unrest.


Adam Kotsko 08.05.07 at 9:01 pm

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.


Henry 08.05.07 at 9:06 pm

thanks joejoejoe – corrected


P O'Neill 08.05.07 at 10:10 pm

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.


"Q" the Enchanter 08.05.07 at 11:24 pm

How dare you question the rhyme and reason of topic selection. Posts serve at the pleasure of their blogger, after all.


stevesh 08.06.07 at 12:04 am

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


s.e. 08.06.07 at 3:08 am

I would also note nell’s comments on Lederman’s post, the second ending…
“It’s an uncomfortable, extremely inconvenient truth to face, but it’s the truth nonetheless: In many parts of the world, long before 2001, our government was notorious for torture.”


Bruce Baugh 08.06.07 at 3:39 am

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.


omar shanks 08.06.07 at 4:43 am

One potential advantage of a second Clinton administration (Hillary’s) is that divers self-proclaimed civil libertarians would, you know, actually stand up for civil liberties.


joe 08.06.07 at 6:21 am

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.


bad Jim 08.06.07 at 7:56 am

We routinely assume that anyone imprisoned in the United States will be subjected to rape, so yeah, we’re pretty much inured to the idea of torture. If you fall into the grips of authority your ass is grass. It’s commonly the subject of jokes and rarely the object of outrage.

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


Seth Finkelstein 08.06.07 at 8:39 am

Orin Kerr in fact has a post:

“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.”


Barry 08.06.07 at 1:24 pm

“They’ll prove you wrong around about the time said practices are being overseen by someone who is not on their local team, I would guess.”

Posted by Andrew

Sums it up quite nicely.


Barry 08.06.07 at 1:32 pm

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.


Martin Bento 08.06.07 at 2:32 pm

Yes, they are wrestling with the dilemmas in the professional wrestling sense: lots of ostentatious groaning, lots of dramatic but improbable moves, the final result according to script.

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


Henry 08.06.07 at 3:06 pm

Joe, Barry – I think that is nonsense. I have very considerable respect for Orin Kerr, and he is unusual for both the right and left in his persistence in bringing up awkward and difficult political issues for his own side, including the various misbehaviours of the AG, which he has blogged about on numerous occasions. He’s someone whom I don’t agree with much of the time, but he is not a hack by any reasonable standard. As I recall, his analysis of the eavesdropping program was that based on what we know, it was probably illegal, albeit not unconstitutional. This analysis was to the ‘left’ of liberals such as Cass Sunstein, and, as best as I understand the issues as a non-legal academic, well argued and plausible (this was the reaction from other people working on this, with far better credentials than mine, at the time too, as I recall).

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


Bruce Baugh 08.06.07 at 3:29 pm

Martin: I like the analogy. Another difference, of course, is that professional wrestlers work hard to entertain their audience :)


c.l. ball 08.06.07 at 4:54 pm

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 08.07.07 at 3:23 pm

Second Henry re: Orin Kerr’s intellectual honesty, and the fact that his critics upthread have deliberately omitted t discuss Kerr’s stated concerns about civil liberties, does not speak well for *their* intellectual honesty.


Barry 08.07.07 at 4:40 pm

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.


Anderson 08.07.07 at 4:48 pm

Barry, based on a few years of reading Kerr, he neither “supports the Bush administration” nor “loudly shouts his support for freedom.”

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


bi 08.07.07 at 5:09 pm

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…)


Barry 08.07.07 at 8:12 pm

Well, bi, you obviously Hate America.


vkrishna 08.08.07 at 12:23 am

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.


Barry 08.08.07 at 2:10 pm

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

Posted by Anderson

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

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