I appreciate Todd's and Jim's responses, linked below; as I noted at the outset, there may well be some misbehavior of various sorts by the administrators. But the student account that Todd points to seems to be a little odd as an attempt at intimidation:

Next [the administrator] began questioning me about my personal life, including my membership in student groups. He had made clear to me that he knew which groups I belonged to, what positions I held, and who my friends were. As I answered his questions, I got the distinct impression that he was checking his notes against my replies, verifying the records in a file he had compiled on me.

If a student holds positions in groups, that sounds like a pretty public matter; it's hard for me to be too troubled by the university administrators' knowing this. If indeed the administration had somehow compiled a dossier on all this person's friends, that would be intimidating in more a spooky stalker way than anything else; but I'm not even sure from the account that this is quite what was going on (though maybe I'm just drawing an inference here from how unlikely I think it is for administrators to spend time doing this). Todd also writes:

The clear concern expressed here is not about a political disagreement, but rather that the administrator was threatening to use this personal information to try to embarrass this student and/or his friends. As I read Eugene's post, he seems to misunderstand the phrase in the story "I think when someone tries to let you know that they know what you’re up to" to mean that the administrator was monitoring the student's political views, when in fact, the reference is to the administrator monitoring the student's personal life.

How exactly would the administrators be likely to use their knowledge of the groups to which the student belongs -- or even who his friends are -- "to embarrass this student and/or his friends"? Presumably the student thinks that his public statements were quite sound, so even if the administration somehow reports on the student's public statements to the groups to which the student belongs, the student ought to be proud of the statements rather than embarrassed. Perhaps the student was worrying that the administration would argue to the groups (and the student's friends) that it thought the student's public statements were mistaken; but it seems to me that someone who makes public statements criticizing the administration should be prepared for the administration's responding that those statements are mistaken. Now obviously if the administrator was actually threatening to blackmail the student with the revelation of some private information (the student's grades, the student's medical history, or what have you), that would be different. But I didn't get any sense of that from the post.

I think it's great that students are willing to publicly criticize the university administration. I think universities shouldn't expel students, discipline students, grade down students, and the like because of the students' criticisms. But students should be ready to be criticized back, and to be remonstrated with by those who take the criticisms personally. Likewise, if a student holds a position (doubtless publicly announced) in a student group and makes public statements, it may well be that the other members of the student group will be told of the student's public statements; public speakers and group leaders should be prepared for that.

Again, as I've said, it may be the administrators were rude, petty, or dishonest (or maybe not). But it's important, I think, to distinguish that from actual censorship or intimidation.

described here.

UPDATE: Bloomberg has more; thanks to InstaPundit for the pointer:

Two suitcases containing bottles of gasoline, propane gas and a detonating device that were found abandoned in German regional trains last month were bombs primed to go off and kill a "high number" of people, police said....

The perpetrators are suspected of being members of a "domestic terrorist organization," [Federal Prosecutor Rainer] Griesbaum said....

Investigators found pieces of paper with Arabic letters and telephone numbers from Lebanon in clothes which were in the suitcases to pad the gas bottles, he said. They also found starch bags from Lebanon which were sold in a store in or around Essen, a city in North-Rhine Westphalia....

While I'm on the subject of editorials about the NSA eavesdropping case, let me note the New York Sun's, which notes that "The administration plans to appeal, and, while we hope it will prevail, it's clear the hard-left is going to play the courts for all it's worth."

It seems to me that the proposition that Congressional judgments about the proper scope of surveillance (even surveillance aimed at catching foreign terrorists) prevail over Presidential judgments is hardly a "hard-left" view. If the Foreign Intelligence Surveillance Act prohibits the NSA program (my reading is that it does), the Authorization for the Use of Military Force doesn't implicitly authorize what FISA forbids (and it's at least quite plausible to say that it doesn't implicitly authorize it), and the Congress has the constitutional power to constrain the President this way (and again it's at least quite plausible to say that it has such a power), then the NSA program is illegal. And even if the program is nonetheless valuable for national security, there are perfectly sensible non-hard-left arguments for concluding that the rule of law should trump even national security concerns (especially if one believes, as I do, that the constraints on the program are statutory and can thus be removed, if necessary, simply by getting Congress to change the law).

Again, one can certainly argue that the program is legal. But it seems to me a mistake to derogate many people's legitimate concerns about the program by connecting them to the "hard-left." Doubtless parts of the hard left (however you define such a group) are interested in sinking this program and many others -- but many people who criticize this program are most certainly not on the hard left.

Orin points me to today's editorial, which says (among other things) that "The ruling eviscerated the absurd notion on which the administration’s arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan," and refers to the "careful, thoroughly grounded opinion." Whatever the merits of the Times' substantive arguments, it seems to me hard to justify calling the opinion "careful" and "thoroughly grounded," for the reasons various people (including Jack Balkin, Orin, and me, see the posts below) have noted.

UPDATE: Commenter Kazinski rightly points out another problem in the Times editorial. The editorial says:

The ruling eviscerated the absurd notion on which the administration’s arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan.

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it [r]esolved by the Senate and House of Representatives of the United States of America in Congress assembled, ...

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons....

or those who are planned on acquiring the habit in the next few months -- Election Projection - 2006 Edition. The post I link to discusses why generic "Will you vote for the Republican or the Democrat in November?" questions may be of limited use in predicting actual results. "Generic polls may uncover a sense of dissatisfaction with the majority party in Washington, but they do not seem, as head-to-head polls show, to indicate a willingness to kick the bums out. It's as though the electorate has grown weary of GOP control, but doesn't see the Democratic candidate in these closely-held GOP districts as a viable alternative." True or not? I don't know enough to tell, but it seems interesting.

The "Blogging Caesar" nickname, on the other hand, doesn't work for me, even though I've read the explanation.

The Post has hardly been a solid defender of the NSA eavesdropping program, but it nonetheless criticizes the decision:

[T]he decision ... is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful.

Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. [For details, see the editorial itself. -EV] ...

The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality....

The newspaper publishes an explanation: "In this case, Kloss [the cartoonist] used the Star of David symbol — which is displayed prominently on the flag of the government of Israel — to depict his view that Uncle Sam is locked into a single position in that region." Here's the cartoon:

Seemed to me that when someone is in a pillory, it's because someone else has locked him into it, not because he's just abstractly "locked into" it. And it also seems to me that in context the Star of David, without the horizontal bars that distinguish the Israeli flag from the general symbol of Jews, is more reasonably interpreted as a symbol of Jews, not of Israel. As I read the cartoon, it was suggesting that Uncle Sam is locked in to something Jewish, not just something Israeli; but in any event, he was locked in by someone else, not by himself — could it be ... the Jews? (It surely can't be Israel, since Israel has very little power to lock the U.S. into anything.)

If you share my interpretation, then I suspect you take a pretty dim view of the cartoon. If, on the other hand, you think the cartoon is more reasonably interpreted simply as Uncle Sam having locked himself into support for Israel, then you would likely see little wrong with it. It's your call.

Are Private Schools Still Legal in America? Is Promoting Legislation Still Legal in America?

I'd think the answer to all these questions would be "yes," even though the government generally declines to support these endeavors (and even though the government generally supports some similar or even rival endeavors, such as childbirth, public schooling, and speech on other issues). Many states ban the use of state funds or state facilities for abortion. The federal government provides a charitable tax exemption for contributions towards a wide range of advocacy — an exemption that is economically equivalent to a form of matching-grant subsidy — but excludes the express promotion of (or opposition to) candidates or legislative proposals. All these provisions are constitutional, and hardly raise the question "Is [X] Still Legal in America?" If anything, it's been conservatives (on the Court and among the public) that have generally argued that failing to subsidize behavior — even constitutionally protected behavior — is far removed from banning it.

Yet the rather conservative Washington Examiner runs the headline "Is Christianity still legal in America?" for a column that faults a public university for mandating that groups (including religious groups) not discriminate based on sexual orientation in choice of officers. I've written about why I think these policies are generally constitutional (though in my view often unwise), partly by analogy to the funding choices I described at the start of this post. The matter is made complex by the fact that sometimes the Court has held that the government must fund constitutionally protected behavior that it disapproves of; for instance, the government may not discriminate based on speakers' viewpoints in operating a broadly available funding program. I discuss that in my article, in more detail than you'll likely want, and come to the conclusion that exclusion of groups based on their expressive association choices doesn't fit within that relatively narrow exception to the "government need not fund behavior it dislikes rule."

But complex as the constitutional matter might be, one thing is simple: Government rules that all groups that get government benefits comply with certain restrictions — even restrictions that end up bearing especially hard on some Christian groups — aren't even close to making Christianity illegal; instead, it's a lot closer to the government's choosing which behavior (childbirth but not abortion, public schooling but not private schooling, much speech but not electioneering or lobbying) to support using its money and access to its property.

UPDATE: Silly screw-up in characterization of the lower court decision corrected (thanks to reader Jeremy Richey for alerting me to this) -- sorry about that; the substantive point remains the same.

I'm not an expert on the Dartmouth governance debates, and for all I know there might be something wrong with what the Administration there is doing. But some of the arguments this post (which I mention because it was linked to at InstaPundit) struck me as not terribly persuasive:

Claims of Censorship and Intimidation at Dartmouth

This morning’s edition of The Dartmouth carries a worrisome story by reporter Rebekah Rombom....

As the Association of Alumni prepares to vote on a new proposed constitution this fall, heated debate has persisted throughout many sectors of the Dartmouth community. Factions on both sides participate, with weblogs becoming an important media for political dialogue.

The website voxclamantisindeserto.org vocally criticizes the proposed constitution and other administrative affairs. A recent alumnus heavily involved with the website is alleging that he was intimidated in private meetings with members of the Alumni Relations administration because of his views on the proposed alumni constitution.

Nick Stork ‘06 issued a public statement on the website accusing Vice President for Alumni Relations David Spalding ‘76 of intimidating him and criticizing his views during a June 7 meeting in Blunt Alumni Center.

According to Stork, he went to Blunt for a morning meeting with Spalding and Assistant Director of Young Alumni and Student Programs Rex Morey ‘99 to make up a missed lunch for Greek leaders days before.

When he entered the room, he noticed a BlitzMail message concerning the constitution he had sent to members of his fraternity, Gamma Delta Chi, lying on top of a stack of papers in the conference room.

Later in the interview, Spalding neither confirmed nor denied that he had a copy of a Stork’s BlitzMail message that was not sent specifically to him.

“I don’t recall having a private e-mail that he sent to his Gamma Delt brothers,” Spalding said.

Stork alleges that in the meeting, Spalding advocated for the newly proposed alumni constitution, a reversal of his constant dedication to neutrality on the subject.

“I think effectively what he did during the meeting was to say: your political views are wrong, here are the right ones,” Stork said, referring to anti-constitution posts on voxclamantisindeserto.org.

“I think when someone tries to let you know that they know what you’re up to, there is a serious intimidation there.” ...

Harsh — the administrator criticized a student's views. He apparently effectively said "your political views are wrong, here are the right ones." He communicated to a vocal critic of the administration that he was paying attention to people's criticisms of the administration.

I take it that the student might have been somewhat worried that the administrator would somehow affect the closing days of his school career (the student was about to graduate), but it would take someone with a pretty poor view of Dartmouth to think that there's that much of a chance that the administrator would, say, urge professors to unfairly lower the student's grades or some such. (Top universities, to my knowledge, are known for leaving the individual grading decisions to the professors, except to the extent that they leave them to TAs.) And if this was the student's view of Dartmouth, then I'm surprised he had spoken out in the first instance, since the administration could (if it's willing to break all the rules) retaliate against a student whether or not an administrator decides to personally argue with the student. All the evidence suggests is that the administration is willing to talk back to students who they think express unsound views. Not a lot to build a case of intimidation and censorship (much less, as the blogger later says, "indecent tactics"), it seems to me.

Some of the other items in the post might be more troubling, depending on the facts; the post discusses the administration's statements to another student who works for a Dartmouth-affiliated charity, which might be proper or might not be, depending on the facts. The post also argues that the administration has been disingenuous in its public comments; I can't speak to that, but in any event that claim strikes me as separate from the claim of censorship and intimidation-by-criticism. One might also argue that the administrator might have been rude or petty in his actions (as opposed to censoring or intimidating or indecent), though we'd need a good deal more information to evaluate that, it seems to me.

The post also suggests that the administration might have gotten the e-mail to the fraternity brothers by monitoring student e-mail accounts — this would be troubling, but a more probable explanation, I suspect, is that one of the many recipients forwarded the message on, and it eventually got forwarded to the administrators. The post proceeds to argue that even this explanation is troubling, because "it means that a recipient of Nick’s e-mails felt that the proper thing to do with a piece of political expression with which he disagreed was to surreptitiously forward it to a College administrator, whom he or she expected would take corrective action. This is not the mark of a campus with an atmosphere fostering of free speech. It is the mark of the precise opposite: chill." But if the "corrective action" is the administrator's "criticizing [the speaker's] views" and saying "your political views are wrong, here are the right ones," that sounds to me like free speech — something even administrators may sometimes be entitled to exercise.

I mention this partly because I've seen similar arguments before in other contexts. Sometimes (perhaps here) they are simply inartful representations of legitimate grievances — for instance, perhaps there really was something more being done to Mr. Stork than "criticizing his views." But sometimes they represent the view that freedom of speech means freedom to speak without criticism, without people tracking what you're saying and faulting you for it, without the "chill" that comes from the possibility that your speech will lead to public disagreement and condemnation. That's not what freedom of speech can be or should be.

UPDATE: For an example of the broader phenomenon I describe, see the incident described in this post from last March. The incidents are of course not identical, but both seem to me to exhibit the "how dare [proessors/administrators] criticize students, 'demean[ their] ideas,' and 'dishonor[ their] perspective'" argument.

UPDATE: I initially misread the story as suggesting that Nick Stork had been an alumnus at the time of the conversation (the trouble with blogging from bed late in the evening); I now realize (thanks to a commenter) that he was an about-to-graduate student. I've updated the post accordingly, but I think my argument is still sound.

If you're a judge, your first responsibility is of course to reach the conclusion that you think is legally right, and to explain it using those arguments that you think are most sound. But once you have that figured out, presumably you'd want to maximize your chances of being affirmed — since by hypothesis your approach is the correct one, and you'd like to see it kept rather than being overruled. And that must be doubly so when you not only think the result you reached is right, but are passionate about it.

You may sometimes render a decision knowing that it will be overruled, for instance because you think this is the decision mandated by current precedent, but you think the higher court will overrule that precedent or even somehow evade it. But once you figure out what you think is the right reasoning, it makes sense to present it as persuasively as possible, at least if you think it's likely that the decision will be appealed. In some cases, you might conclude that the higher court judges just won't care what you write, because they'll make up their minds based on their own considerations. Yet even in ideologically polarizing cases, there are usually at least some judges who may be swayed by persuasive argument, especially from a fellow federal judge.

By that standard, the judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.

Jeff Rosen once faulted Justice Blackmun for a judicial approach that was so emotional that it undermined his ability to implement the very ideas that he passionately believed; his "tendency to let his heart get the better of his head," Rosen argued, would "deprive[] him of lasting influence." (Others have argued that Justice Scalia's pugnacity might have a similar effect.) It seems to me that by writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.

Mystery Pollster has an interesting discussion of this, building around one incident -- I'm not an expert on the subject, but it struck me as quite informative. Thanks to Mickey Kaus (Slate) for the pointer.

Much worth reading, here. Key excerpts (some paragraph breaks added):

Although the court reaches the right result -- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments. The basic idea is that when the government spys on its citizens, they are likely to avoid making controversial statements or join controversial organizations. Fair enough. But the problem is that the program was secret. It was the disclosure of the program that created the chilling effect. And even if we put that problem to one side, it is not clear whether a program that is otherwise legal under the Fourth Amendment and federal law ipso facto violates the First Amendment simply because people are chilled by its existence.

Second, the court does not really deal with a number of very good arguments for why the NSA program might be within the Fourth Amendment. The best argument for the court's position is that if the program reaches United States persons who are not agents of a foreign power, like the plaintiffs, it may be unconstitutional. But the court does not make that distinction.

Finally, the court seems to be very weak in its reasoning about the separation of powers. It does not even cite the recent Hamdan decision, which is probably the most relevant decision, resting its arguments primarily on the 2004 Hamdi decision. It also seems confused about what constitutes a violation of separation of powers. If the AUMF did in fact amend FISA, the government has a very strong argument that it falls into category one -- maximum executive power -- and not category three -- minimum executive power -- under the Youngstown analysis. The court does not seem to deal with the best version of the government's arguments. I think those arguments fail, for reasons that Marty and I, among others, have elaborated. But I must say that the court's analysis is not very strong. It depends heavily on the fact that the President has violated the First and Fourth Amendments, which, I think, are the weakest arguments against the program.

If those arguments go away, the separation of powers argument it offers is not very good, although in fact there are very good arguments for why the program does in fact violate the separation of powers, as well as FISA itself. The fact that the court does not bother to meet the government's claim that FISA is unconstitutional is also quite unwise, in my view. Indeed, I'm mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that reheases the best arguments pro and con, or, for that matter, the reasoning of the Supreme Court's Hamdan decision, handed down this June, which is, in my estimation, precisely on point.

As Orin pointed out last December, the strongest argument -- quite possibly an ultimately correct argument -- against the NSA program is that it violates not the Constitution, but the Foreign Intelligence Surveillance Act, which bans "engag[ing] in electronic surveillance under color of law except as authorized by statute." The government has responded that (1) the Authorization for the Use of Military Force implicitly authorizes certain warrantless surveillance, and that (2) the President in any case has inherent constitutional powers, powers that Congress can't limit (and that the Fourth Amendment doesn't limit, for reasons noted below, to engage in national security surveillance). Orin's post (a must-read) suggests that the government's responses are on balance not persuasive, and that the program probably violates FISA.

So it's possible that the court got the result right -- in my view, not on the First and Fourth Arguments, but on the FISA point. Nonetheless, if the court's FISA analysis is mistaken, then the other arguments (the separation of powers and the inherent power arguments) don't provide any independent basis for its decision. The separation of powers point rests on the assertion that "The President, undisputedly, has violated the provisions of FISA"; and the inherent power argument, which is long on rhetoric but short on detailed analysis, rests on the assertion that "Not only FISA, but the Constitution itself has been violated by the [program]." If the First and Fourth Amendment analyses are mistaken (as I think they are), and if the FISA analysis is mistaken, then the other analyses provide no independent foundation for striking down the program.

So, I think (as Orin's post suggested), the real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the AUMF, then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here.

The court also holds that the program violates the First Amendment, because it deters some people from communicating with the plaintiffs, given the risk that the communications will be overheard. Note, though, that this judgment rests entirely on the court's earlier conclusion (which is in my view not fully defended) that the eavesdropping violates the Fourth Amendment.

All publicly known eavesdropping -- or for that matter the prospect of possible searches of tangible papers -- poses the risk that some communications will be deterred. Eavesdropping conducted pursuant to properly issued warrants (ones that can be based on mere probable cause, rather than any solid proof that the eavesdropping will yield incriminating evidence) poses that risk. Eavesdropping conducted purusant to properly issued FISA orders, which don't even require probable cause that the speech collected will be incriminating (only probable cause that the targeted person is an agent of a foreign power), poses that risk. Constitutionally permissible border searches of papers pose that risk.

But there's no need to show in any of these cases (as the court in this case suggested) that the search is based on "a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen." At most, the Fourth Amendment rules (which generally require only a warrant and probable cause and not a compelling interest and narrow tailoring, sometimes don't even require a warrant, and sometimes don't even require either a warrant or probable cause) are made somewhat more demanding by the First Amendment (see, e.g., Lo-Ji Sales, Inc. v. New York), though even that doctrine is quite limited. And in a case like this one, I know of no Supreme Court cases suggesting that a search that's valid under the standard Fourth Amendment rules would violate the First Amendment.

So the court's First Amendment conclusion, if it's correct, would be correct only if the court is right to say that the program violates the Fourth Amendment, and that a violation of the Fourth Amendment in such a situation yields a violation of the First Amendment. Perhaps the court is correct here, but it's important to recognize that the First Amendment holding is derivative of the Fourth Amendment holding, rather than being a fully independent basis for the decision.

The district court, in a three-page analysis — mostly consisting of block quotes from opinions in the Supreme Court's United States v. United States District Court (Keith) case — concludes that the program is "obviously in violation of the Fourth Amendment." The opinion, however, doesn't even mention the arguments that

1. the Court has expressly held that the government has broad authority to engage in warrantless, probable-cause-less searches of goods and people crossing the border, and that the same authority should apply to information crossing the border (as some lower courts have indeed held as to information crossing the border on computer disks), and

2. Keith itself expressly left open the question whether the Fourth Amendment rules applicable to purely domestic intelligence surveillance even applies to surveillance aimed at ferreting out the activities of "foreign power[s]" (a term that could encompass foreign nongovernmental organizations as well as foreign governments), as oppose to activities of domestic organizations (the matter that the Keith Court stressed was at issue in that case).

For more on these two arguments, see Orin's post from last December, which I also excerpt below (but click on the link to the original post to get links to earlier cases):

On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument — and with dicta that seems to say that mode of transportation is not relevant.]

The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.

The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.

here. Naturally, expect a quick appeal.

An acquaintance of mine (whom I've always found quite reliable) reports that when she sought out an egg donor, one candidate donor — a woman who was past the age of majority, and in fact in graduate school — was disqualified by the agency involved because she was ... a virgin. The theory, I take it, is that somehow the lack of sexual experience made it harder to maturely make the egg donation decision, though that sounds pretty odd to me. (The acquaintance stressed that the disqualification was the agency's choice, not her own.)

Perhaps there was something lost in the translation, but, as I said, my source was quite credible. Nothing illegal here, just interesting.

People with echolocation ability (thanks to GeekPress for the pointer). Wow.

Philosophy professor Thomas Nadelhoffer writes:

Last week U.S. Senator Rick Santorum suggested that the individuals who leaked information about our domestic and international surveillance programs were traitorous (see here). Moreover, he claimed that, "If leaking this information is traitorous, then publishing it is also complicit with that activity." Just to be clear, his first claim is that the act of leaking information about these surveillance programs amounted to treason--presumably because it involved divulging information that was supposed to be kept secret (i.e., outside the eyes and ears of the public and beyond the scope of the law). His second claim is that the news agencies that published the information that had been leaked were themselves complicit with treason--presumably because they made the public aware of the information that should have been kept secret in the first place.

For now I want to set aside the tricky issue of determining precisely what complicity involves (see here for an earlier discussion). Instead I simply want to suggest that if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason. After all, if he had not brought the subject up yet again, the issue would be getting less public attention. Instead, Santorum's comments make the issue even more visible--which in turn means that the secrets that were improperly leaked and published are more visible. And, based on his own reasoning, bringing attention to the secrets is treasonous. Hence, Santorum is a traitor who by his own standards "must be pursued aggressively." Luckily, I just moved to Pennsylvania. So, I get to play a part in kicking him out of office in the fall.

Let's set aside the technical definition of "treason" for now (since Prof. Nadelhoffer isn't really focusing on it), and the difficult First Amendment question of whether publishing leaked secrets may be properly criminalized. Let's instead focus on Prof. Nadelhoffer's argument, "if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason."

Isn't there a pretty clear and sensible distinction between (1) publishing for the first time material that may help terrorists evade surveillance, and (2) "mak[ing] the issue even more visible" by commenting on this publication?

The former takes a secret and publishes it to the world, to the point that many terrorists will see it for the first time (I realize many of them might have already suspected it, but there's suspecting and there's knowing, especially knowing that involves knowing some details). The latter takes an already published secret -- one that's been in lots of high-circulation newspapers, and has presumably been seen by most terrorists -- and at worst reminds people of it. Perhaps the program will thus be "more visible" to some people as a result of Santorum's reminder; but I suspect that it will be materially more visible to terrorists, who have strong personal reasons for paying attention to the program quite without Santorum's further comments. Or is there some philosophical argument supporting Prof. Nadelhoffer's position that I'm missing here?

Stanford Prof. Ben Barres e-mailed me about my earlier criticisms of his Nature article; I then e-mailed him back, and he responded further, kindly agreeing to let me post our exchange. Here are the relevant parts, starting with Prof. Barres' first e-mail (some paragraph breaks added):

I noticed your blog comments about your discomfort with my comment about verbal violence in my recent Nature commentary. If I may clarify, I wouild definitely not like to squash free discussion of ideas in any way. But I would like to draw a line between a faculty member conducting a free discussion as compared to a faculty member teaching that women are innately less good as fact in a classroom. For one thing it's not a fact, for another by teaching it as fact he makes it so. Studies have shown, for instance, that when teachers are told a group of their students are less intelligent, that they in fact perform less well. Teaching that a group of people is innately less good is extraordinarily damaging, as you would realize if you were personally subject to the harmful consequences of discrimination (no offense intended--but do you not think it is meaningful that pretty much the only people defending Larry Summers are white men?).

There is a faculty member here at Stanford, Bill Hurlbut, who is on the Presidential Ethics Committee that makes recommendations on embryonic stem cell research. He is deeply religious and I personally disagree with his views about banning stem cell research. However, I would defend his right to discuss this subject in the classroom. Whenever he teaches, he discusses a controversial topic fully by encouraging students to bring up and discuss and explore all possible viewpoints. The students never have any idea what his own personal viewpoint is and he discusses deeply all viewpoints in a balanced and fair way. This is very different than Professor Harvey Mansfield teaching in his classroom that women are innately inferior (I really don't care what he says outside of a classroom to his friends and relatives). That he has done this is documented in the Harvard Crimson. When faculty tell women they are less good, this causes them to do less well, demoralizes them, and tells them they are not welcome.

I responded that my original reading was based on Prof. Barres' focus on Summers' out-of-class statements (a matter I discussed in the quasi-footnote here), and Prof. Barres graciously replied that "I can see why you would have come to your original interpretation as there was some (unintended) ambiguity. It was not my intended meaning." But I also went on to probe a little further Prof. Barres' views about the in-class statements:

Also, I think there's much to a pedagogical style in which "The students never have any idea what [a teacher's] own personal viewpoint is and he discusses deeply all viewpoints in a balanced and fair way"; my sense, though, is that most universities generally don't require such a teaching style these days. Say that Steven Pinker, who may well be mistaken, as you argue, but who presumably has some nonridiculous reasons for thinking that his view is correct, teaches a class in which the question of sex differences comes up. He discusses deeply all viewpoints (subject perhaps to inevitable time constraints) in a balanced and fair way, but also mentions that his view is that the data points to biological sex differences being part of the reason for the disproportionate representation of men in the sciences. Would that too be intolerable and verbal violence?

Prof. Barres in turn responded:

Don't get me wrong. I am not saying that someone that does this should be put in jail. I am simply saying that to tell young people that they are innately inferior is deeply harmful. It is presently scientifically impossible to sort out with any degree of certainty the effects of social forces and prejudice, which are more than amply demonstrated to be large, from any possible innate effects. Therefore any faculty member who pronounces in a classroom that a whole group of people is wired to be inferior is causing great harm without having strong evidence to back his contention. If I were president of Harvard University and I had a faculty member that was doing this, I would ask them to feel free to have a full and balanced discussion on the topic, and to feel free to discuss any and all aspects of the question, but that they should stop short of pronouncing that science had demonstrated that a group of people was innately inferior (be it Jews, African-Americans, gay people, or women). It is hard for me to see any strong argument for not taking the course of action that is least harmful. Since tolerance and free speech are both important values, I don't see why one of them should always win out over the other, instead of their being an appropriate balance. (It bothers me deeply that there is an asymmetry here--overwhelminingly it is only white men who argue that its ok for faculty to categorize women or minorities as innately inferior ....).

I agree that people "should stop short of pronouncing that science had demonstrated that a group of people was innately inferior," unless they really have good evidence that science has so demonstrated. Certainly statements about such scientific questions should be no more confident than the data warrants.

Yet I'm also struck by Prof. Barres' reaction to my hypothetical, in which a professor merely discusses the data thoroughly in class and "also mentions that his view is that the data points to biological sex differences being part of the reason for" a phenomenon. To his credit, Prof. Barres does say "I am not saying that someone that does this should be put in jail." But he goes on to say, in a paragraph prompted by the same hypothetical, that "to tell young people that they are innately inferior is deeply harmful," and "[s]ince tolerance and free speech are both important values, I don't see why one of them should always win out over the other, instead of there being an appropriate balance."

In principle I agree that we should take "the course of action that is least harmful." But there is great harm, for the reasons I mentioned earlier in this thread, in stifling discussion of possible innate sex differences, and that stifling seems to me to be precisely what Prof. Barres' analysis calls for.

Before science can be said to "demonstrate" something "with any degree of certainty," scientists have to be able to discuss their tentative findings, both among themselves and with students (who will often end up being fellow scientists). If we're going to have a serious scientific debate, which will likely span decades and generations, we can't demand that one side say nothing (at least to students) about where it thinks the data points, while the other side is free to express its views.

If we're concerned about the possible harm that such conjectures may cause simply from their being heard, I think it's far better to educate students about probabilities, and to show that even if there are biological differences between men and women as populations, they don't tell us much about the qualities of a particular man or a particular woman. We shouldn't have a truncated scientific debate, for fear that some might be dispirited by one side's conjectures. Nor should we have some sort of secret debate that is allowed to go on only among professors because it's seen as too unpleasant or dangerous to be exposed to mere students.

This is especially so because, to his credit, Prof. Barres isn't even saying that the view that innate sex differences exist, and form a part of the explanation for the observed disproportions, is factually wrong. Rather, he says that "[i]t is presently scientifically impossible to sort out with any degree of certainty the effects of social forces and prejudice, which are more than amply demonstrated to be large, from any possible innate effects [by which I presume he means innate causes]."

Now it seems to me that if it impossible to do this sorting, then it's hard to accurately estimate "the effects of social forces and prejudice." Evidence of the presence of such social forces and prejudice can't really tell us much about the magnitude of the real-word effects of those forces, given that the observed effects might stem from other causes (and might do so to a "scientifically impossible to sort out" degree).

But in any event, science has not, I think, generally advanced by saying "it's presently scientifically impossible to sort out with any degree of certainty" X and Y, and thus abandoning the project of sorting them out, or of making conjectures at weaker levels of certainty. Rather, scientists have looked closely at evidence, made their best guesses, and over time improved their scientific tools and crafted theories that are helpful even if they lack the certainty that some might prefer. Likewise, while the impossibility of certainty should caution people against claiming certainty that the facts don't support, it shouldn't stop people from investigating the facts and reporting what they see as the directions in which the facts seem to point.

In The American Conservative. An excerpt (one paragraph break added):

[Conservative atheists and agnostics] find themselves mystified by the religiosity of the rhetoric that seems to define so much of conservatism today. Our Republican president says that he bases “a lot of [his] foreign policy decisions” on his belief in “the Almighty” and in the Almighty’s “great gifts” to mankind.

What is one to make of such a statement? According to believers, the Almighty’s actions are only intermittently scrutable; using them as a guide for policy, then, would seem reckless. True, when a potential tragedy is averted, believers decipher God’s beneficent intervention with ease. The father of Elizabeth Smart, the Salt Lake City girl abducted from her home in 2002, thanked God for answering the public’s prayers for her safe return. When nine miners were pulled unharmed from a collapsed Pennsylvania mineshaft in 2002, a representative placard read: “Thank you God, 9 for 9.” ...

But why did the prayers for five-year-old Samantha Runnion go unheeded when she was taken from her Southern California home in 2002 and later sexually assaulted and asphyxiated? If you ask a believer, you will be told that the human mind cannot fathom God’s ways. It would seem as if God benefits from double standards of a kind that would make even affirmative action look just. When 12 miners were killed in a West Virginia mine explosion in January 2006, no one posted a sign saying: “For God’s sake, please explain: Why 1 for 13?”

Here's a strange sort of -- apparently vaguely conservative -- concern about "international law": The Eagle Forum Web site has a piece about the International Baccaulaureate Organization, which complains about the fact that disputes with the IBO have to be resolved under foreign rules related to international contracts:

The International Baccalaureate Organization (IBO), based in Geneva, Switzerland, offers three different International Baccalaureate (IB) programs and is responsible for assisting schools with implementation so that children learn how to become "engaged world citizens" (IBO, 2006).... All of the programs come with tests administered by the IBO.

Like many other schools in the United States, some Oklahoma schools offer at least one of the three IB programs at the taxpayers' expense....

To offer IB programs, schools undergo a process governed by the IBO. Once complete, the schools operate with the guidance and support of the organization.

In its Rules for Authorized Schools, the schools must "abide by all the IBO regulations and procedures" (IBO, 2005, p.18).

Interestingly, Article 12 notes that Swiss law governs the Rules and all other documentation related to the authorization for teaching an IB program (IBO, 2005, p.22) (emphasis added).

Under Article 13, arbitration is the way to resolve disputes regarding the Rules. The arbitration process consists of three arbitrators who act under the Rules of Arbitration from the Chamber of Commerce and Industry in Switzerland; the seat for arbitration is in Geneva (IBO, 2005, p.22)....

As of January 1, 2004, Switzerland replaced its arbitration rules with that of the United Nations Commission on International Trade Law, otherwise known as UNCITRAL ("New Swiss Rules," 2004). According to UNCITRAL's web site, this organization is the "core legal body" of the United Nations, whose goal is to promote "commercial law reform" across the globe (UNCITRAL, 2006)....

Neither Switzerland nor the United Nations operates under American law, which seems to be further proof our children and IB schools in America become a subject of so-called international law once the school signs a contract with the IBO....

This strikes me as a very odd, and rather hyperbolically worded, objection. If U.S. schools want to get for their students the benefits of an internationally recognized credential, they need to enter into a contract with a foreign entity -- just as if U.S. schools want to get for their students the benefits of, say, foreign-produced computers or lab equipment or gym equipment, they need to enter into a contract with a foreign entity. With such contracts, one or the other side (or perhaps both) will have to agree to have the contract decided by laws other than its own home country's. Sometimes it makes sense for us to demand that such disputes be governed by our own law, but sometimes it's just not a big deal (especially when we're dealing with an international organization that understandably wants all its disputes governed by the same legal rules).

This is especially so since the typical dispute, I imagine, will have to do with an American family's claim that the IBO authorities somehow didn't give their child proper credit or the proper grade. The only thing at stake is the benefit that the child will get from his IBO participation.

If somehow the foreign legal rules end up unfair to the child, he'll lose very little -- it's hardly that the "child" will "become a subject of so-caleld international law" in any meaningful sense. And there's not even any real reason to expect that the rules will end up being unfair. Plus if for whatever reason a school district becomes dissatisfied with the value it's getting from the IBO program, it can simply wash its hands of the program. (The paper I point to also makes a more substantive criticism, suggesting that the IBO may not maintain proper security of student records -- that at least is a sensible thing to argue about; and if the state is concerned about this, it may well demand contractual assurances from the IBO, just as it can demand contractual assurances of information confidentiality from any other organization, foreign or domestic, which it does business.)

In some situations, there may well be reason to worry about submitting to foreign legal rules, or to the jurisdiction of foreign courts. But in some situations, there's little reason to worry about it -- and when one is trying to get the benefits of contracting with international organizations (whether service providers, certification providers, or product providers), such transnational choice-of-law rules or choice-of-forum rules make perfect sense. Conservative or liberal, we must realize that we live in the larger world, that our children can benefit from credentials and products that come from this larger world, and that sometimes disputes arising under international business relations will be decided under foreign law. Nothing inherently bad about that, it seems to me.

Thanks to reader Carl Sanders for the pointer.

The Foundation for Individual Rights in Education reports:

In a dramatic turn of events, the State University of New York at Fredonia (SUNY Fredonia) has promoted the embattled Professor Stephen Kershnar to full professor....

As FIRE reported last month, Kershnar was nominated for promotion to full professor with abundant support from his colleagues and superiors. SUNY Fredonia President Dennis L. Hefner nevertheless denied the promotion. Hefner explained that although Kershnar’s “teaching has been described as excellent,” he would not be promoted because of his “deliberate and repeated misrepresentations of campus policies and procedures…to the media,” which Hefner claimed “impugned the reputation of SUNY Fredonia.” The supposed “misrepresentations” referred to Kershnar’s bi-weekly opinion columns in the local Dunkirk-Fredonia Observer and his public criticism of a student conduct policy. The university presented absolutely no evidence, however, that Kershnar ever actually misrepresented the university.

When Hefner suggested to Kershnar that refraining from such statements in the future would help his chances for promotion, Kershnar offered to submit his writings to prior review for a year. Hefner suggested instead that Kershnar sign an even harsher contract that would be in effect for an indefinite period of time and that would require Kershnar to get “unanimous consent” from a university committee for all writing regarding the university to ensure “the avoidance of any future misrepresentations” of campus practices.

Kershnar refused Hefner’s illiberal and unconstitutional arrangement and contacted FIRE. On July 7, FIRE wrote a letter to Hefner criticizing his actions. Hefner responded in a letter dated July 20 by upholding the denial of promotion to Kershnar.... [But within days after] articles appear[ed] in the New York Post, the Chronicle of Higher Education, and Inside Higher Ed[,] ... SUNY Fredonia administrators informed Kershnar that they would reevaluate his promotion....

I hadn't had a chance to blog about the matter earlier, but I had looked into the underlying documents (which are pointed to here), and my tentative sense was that FIRE's reaction was quite right -- the professor was being faulted for publicly expressing views with which the university president disagreed, and not for any actual misrepresentations. I'm very pleased that everything ultimately turned out well.