Posted by Orin Kerr:
Greenwald Responds:
http://volokh.com/archives/archive_2008_11_02-2008_11_08.shtml#1225942261
In a [1]post yesterday, I asked what Glenn Greenwald might have in
mind when he said that I was "a leading apologist for many . . . of
the lawless and radical Bush policies of the last eight years." Glenn
has now graciously [2]responded:
Orin Kerr, who specializes in using professorial and
self-consciously cautious language to endorse radical surveillance
policies, feigns shock that I characterized his positions the way I
did, and asks: "does anyone know what 'lawless and radical'
policies I apparently served as an apologist for?"
Greenwald then offers four positions I have taken in the last eight
years in which I have allegedly been an apologist for "lawless and
radical Bush policies." They are, with links in [3]Glenn's update, as
follows.
To read the rest of this post, click here.
1) Although I criticized the Protect America Act of 2007 on some
grounds, I thought its basic structure was actually pretty good;
2) Relatedly, I thought the FISA Amendments Act of 2008 struck a
pretty decent balance between privacy and security;
3) I criticized Judge Taylor's initial NSA opinion for being poorly
reasoned; and
4) I disagreed with the Fourth Circuit's initial panel decision in
al Marri, the case that said an al Qaeda agent in the United States
could not be detained under the AUMF.
Greenwald concludes that in each of these four instances, I took
positions that were "radical and lawless":
Those are policies that are radical and lawless. Kerr repeatedly
served as an apologist for them -- hence, my characterization. The
fact that someone uses professorial and caveat-filled language when
defending indecent policies like these may make them civil, but not
decent. Ask John Yoo (I'm not equating Yoo and Kerr), or see this
superb satirical post on the vital and oft-overlooked distinction
between civility and decency.
I certainly appreciate Greenwald taking the time to explain his
position. Also, I appreciate his reading the blog. At the same time,
his evidence doesn't support his claim.
The first problem with Greenwald's position is that every one of my
positions was shared by the other branches of government beyond the
executive branch. The Protect America Act and FISA Amendments Act are
not lawless Bush Administration policies. Rather, they are legislation
passed by a Democratic Congress in response to (lawless) Bush
Administration policies. And my view has prevailed in the NSA and al
Marri cases: Judge Taylor's decision was [4]overturned by the Sixth
Circuit, and the the Al Marri panel opinion was [5]overturned en banc
largely on the same reasoning I voiced in my blog posts (a cert
petition in the former was denied, and in the latter it is now
pending). So if I've been an apologist for the lawless and radical
policies of the Bush Administration, at least I was always in the
company of the Democratic Congress and the Article III judiciary.
Second, I don't understand how any of the positions I took defended
"lawlessness." I didn't defend breaking the law: I just expressed
either descriptive views of what the law was, normative views of what
it should be, or made assessments of the craft of particular legal
opinions. One can certainly disagree on these fronts, but I'm not sure
how such disagreements makes the other person an "apologist" for
"lawlessness." For example, I thought and think the TSP is illegal
because it violated FISA; I also thought Judge Taylor's opinion
striking it down was the worst legal opinion I have ever read. But I
don't see how pointing out how remarkably poorly reasoned it was
amounts to me being an "apologist" for "lawlessness."
Finally, it seems that Greenwald's case really boils down to me
weighing civil liberties and public safety interests differently than
himself, the ACLU, and Jack Balkin (the sources he uses as reference
points in his post). If that's the real argument, then it is certainly
true that we have differences. In the case of Al Marri, for example, I
do think it's pretty odd to say that the executive has no authority
beyond the usual criminal detention powers to detain a non-citizen al
Qaeda terrorist who enters the U.S. to execute a terrorist attack.
Similarly, in the case of the FISA statutes, I do think that it makes
sense to allow intelligence agencies to monitor foreigners located
outside the United States with a large-scale FISA order rather than
individualized warrants. Certainly there is room for disagreement on
these issues: My view reflects my own sense of appropriate responses
to the terrorist threat, and different people will disagree on that
threat.
But I guess I don't see how any of these disagreements suggests
that I have been an "apologist for lawless and radical Bush policies."
Perhaps the idea is that one who fails to condemn a policy as severely
and quickly as Greenwald and the ACLU makes one an apologist for
radical lawlessness. But that seems to drain the terms of their usual
meaning. Plus, given that I have been a frequent critic of the Bush
Administration in many instances, including [6]having testified
against its Gitmo policy before the Senate Judiciary Committee, it
seems sort of weird to say that these positions make me an apologist
for many Bush policies. Sometimes I ended up agreeing with the Bush
Administration, sometimes (more often, in the last few years) I
didn't. I would guess that's how I'll react to Obama's policies, too.
Anyway, I don't want to make too much of this. The [7]comment thread
to my earlier post, and my e-mail inbox, suggest that our liberal
readers who disagree with me on most issues of policy think Greenwald
is simply incorrect here (I very much appreciated the comments, by the
way). Still, I did want to respond on-blog just to explain why I think
Greenwald's points don't add up.
References
Visible links
1. http://volokh.com/posts/1225913201.shtml
2. http://www.salon.com/opinion/greenwald/2008/11/05/supreme_court/index.html
3. http://www.salon.com/opinion/greenwald/2008/11/05/supreme_court/index.html
4. http://www.ca6.uscourts.gov/opinions.pdf/07a0253p-06.pdf
5. http://www.scotusblog.com/wp/wp-content/uploads/2008/07/almarrienbanc.pdf
6.
http://64.233.169.104/search?q=cache:dwppG8B2UpYJ:judiciary.senate.gov/print_testimony.cfm%3Fid%3D2785%26wit_id%3D6472&hl=en&ct=clnk&cd=3&gl=us&client=firefox-a
7. http://volokh.com/posts/1225913201.shtml
Hidden links:
8. file://localhost/var/www/powerblogs/volokh/posts/1225942261.html
9. file://localhost/var/www/powerblogs/volokh/posts/1225942261.html
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