Hardly a "Hard-Left" Position:

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.

Jerry Mimsy (www):
I don't know that it was always a hard left position. I remember when "last minute maneuvers in congress [could] make a mockery of presidential decrees".
8.18.2006 2:02pm
Charlie (Colorado) (mail):
Are you sure you're reacting to the right thing here? It doesn't seem too unreasonable to identify the ACLU with the Left, but more to the point, the court decision has been played by many people on the hard Left as being a big deal, including some pretty obvious threats made against telecom companies about their potential liability if they continue to co-operate with the NSA. (Question: isn't force majeur [don't have time to check the spelling, hopefully you get what I mean] a pretty good defense anyway?)

That would seem to be an example of the Left playing the courts for all they're worth.
8.18.2006 2:11pm
fishbane (mail):
Strikes me as the sort of labeling that has become endemic recently. "Conservative", for some, has come to mean complete devotion to and agreement with Bush. (Only for some. There are honest conservatives left, such as our host.) It is axiomatic that disagreement with Bush means you're not conservative (special exemptions are made for occasions when he isn't hard-line on, say, border issues, and mild dissagreement on things like pork and the national debt also merit free-thought passes). But a label is needed for people who are not only not conservative, but also might have actually acknowledged that Clinton is not the devil. That label is variously "hard left", "moonbat", "terrorsymp", etc. I think the naming committee hasn't sorted out the preferred term yet.
8.18.2006 2:31pm
The Bush Administration and/or its defenders has unfairly condemned its critics as being out of the political mainstream?

I'm shocked, shocked.
8.18.2006 2:40pm
Gabriel Malor (mail):
Medis, how do you go from NY Sun Editorial Board to "The Bush Administration and/or its defenders"?

EV makes the point that not all those who believe the NSA program is forbidden by FISA are "hard left." In doing so he implies that that belief is pretty "mainstream" (to use your term).

So you come along and imply the inverse; that is, that "The Bush Administration and or its defenders" are not mainstream. Which is, ironically, the same type of claim that EV was criticizing the NY Sun Ed. Board for.

8.18.2006 2:46pm
ctw (mail):
interestingly, there seems to be a growing number of thoughtful non-leftists (don't know what else to call the eclectic bunch I have in mind) raising objections such as prof V's. for those who have engaged in exactly that kind of mindless labeling (and I don't include prof V therein), "sow what you reap" comes to mind. maybe in time that silliness will be purged from serious discourse and left (pardon the expression) to illiterate bar chat where it belongs.
8.18.2006 2:49pm

How did I imply that the Bush Administration and/or its defenders are not mainstream?

I think the New York Sun editorial was clearly defending the Bush Administration with respect to this issue (do you actually disagree?). So, that was how I got to that description: the author of the editorial is a "defender" of the Bush Administration because the editorial "defended" the Bush Administration.

But I don't see any suggestion in all this that such defenders of the Bush Administration are outside of the mainstream. And note that I used a similar term ("critics" of the Bush Administration), which I also don't think implies that the critic in question is outside the mainstream.

In sum, I think critics and defenders of the Administration alike can be "mainstream", and it is a silly rhetorical tactic for either side to imply otherwise.
8.18.2006 3:06pm
Chico's Bail Bonds (mail):
(Question: isn't force majeur [don't have time to check the spelling, hopefully you get what I mean] a pretty good defense anyway?)

I hardly think a presidential order is an Act of God. Though, I'm pretty sure some will disagree with me.
8.18.2006 3:08pm
Jimmy (mail):
It is another symptom of the demagogue style that is the current popular hallmark of political discussion. All the extreme terms to describe an ideological opponent, ie Nazi, Communist, Facist, are so over-hyped and abused that they become the mainstream and there is no longer a moderate point of view. I enjoy this website due not to the fact I simply parrot the viewpoint of the author, but because there seems to be a haven here where most of the posters agree to discuss and not simply argue / yell louder than the dittohead across the table.

The problem is both on the left and the right. I remember a lot of it beginning with Rush and Franken. Anybody read Franken's book? I found it very funny, but in the same vein of most of the readings / "discussions" found today. The title was "Rush Limbaugh is a Big Fat Idiot and Other Observations," if that gives you some idea. I find most of these books can be accurately "read" by reading the liner notes and title without in-depth research.

Franken even made some great points within, about Rush's cherry=picking of facts and simple statements that were very false, but he still dragged down the level of discussion far below an acceptable level. It made his points tough to swallow and made me feel like I was joining in on name-calling. I read Coulter's first big book, and it was an exact read from the other side of the dinner table. Some valid points, but I felt like I was kicking puppies and bullying the skinny kid with asthma by agreeing...

Most of the left doesn't want to create a Communist nation, and most of the right isn't looking for some Ayn-Rand-ian hell of corporate governorship, but who could tell by the media reports and punditry?

I wonder if it comes from having a slow news day for several years and having to "Hearst" up a little business every now and then. It makes the press look so damn bad, and then when the groups they supposedly watchdog start monkeying around and need watching, the boy who cried wolf with a press release is ignored or marginalized as having a huge bias.

8.18.2006 3:23pm

I don't think there is an answer, but I do think it is cyclical. Eventually people get sick of the nonsense and start favoring more moderate rhetoric, and then it all goes back again.
8.18.2006 3:31pm
Nat Echols (mail):
Thanks, Prof. Volokh. This point can't be made often enough. It's also important to note that Bush could almost certainly have received explicit authorization for the program from Congress had he asked for it. Instead, the administration chose to follow a novel (and delusional, in my uneducated opinion) theory of Constitutional law that looks more and more like a test of the limits on executive power than a serious attempt to defend the country.

It's a sure thing that the usual suspects would have complained about even a Congressional mandate for the program, just as they do about the relatively moderate Patriot Act, but the real issue here is the lack of accountability and oversight, and the deliberate violation of federal law. Unlike many of the other extra-legal actions of the administration, I would have a difficult time attacking this program on its merits alone. In fact, I think it's a pretty reasonable step to take. So why didn't they just ask Congress?
8.18.2006 3:38pm
Henri LeCompte (mail):
Hmmm... I hate to rain on everybody's holier-than-thou parade, but I don't think y'all are reading the quote correctly. I don't think it says that anyone who disagrees with the Administration on the NSA issue is a "hard" leftie. It just says that "the hard-left is going to play the courts for all that it's worth." That means exactly what it says, and no more.

What it suggests is this: A sub-set of the people who disagree with the Bush Administration are the "hard-Left." Those people are going to attempt to use the courts to try and push through a rigid and extreme interpretation of the NSA program and the legal issues it raises. The "hard-Left" is going to file weak lawsuits in Federal court claiming all sorts of "damages" that resulted from the NSA program. From there, "hard-Left" judges, like Anna Diggs-Taylor, will make decisions that are extreme, illogical and predetermined.

In other words, the behavior of the "hard-Left" vis-a-vis the federal courts will be different than the behavior of the Eugene Volokhs of the world. The "hard-Left" will be seeking to use the courts to enforce an exaggerated and unreasonable interpretation of the issues raised by the NSA case. Not everyone is behaving this way.

It is really just a simple logic puzzle. The sentence quoted does not, in any way, suggest that everyone who questions the NSA program is a hard leftie. In fact, the sentence doesn't even reference "those who oppose the NSA program." It only addresses the "hard-left." Simple, no?
8.18.2006 4:23pm
Thorley Winston (mail) (www):
Henri LeCompte is quite correct. It might be helpful when critiquing editorials to actually critique what was actually written rather than trying to critique something that was not.
8.18.2006 4:35pm
Jimmy (mail):
Interesting read at the bottom of the article - he "warns" about Carter's influence in all this - creation of FISA, appointing of the judge, and the botched Iran crisis.

Then he brings up the foiled plot in London, plainly comparing the ineffectual Carter vs the sophisticated terrorists.

But he fails to mention how the London plots involved the use of FISA... They got those special warrants to work on the London Case. The system worked!!!

But the op-ed's selective observation definitely failed to mention this.
8.18.2006 4:37pm
Henri LeCompte (mail):
Unfortunately, we live in an era of irresponsible punditry and irresponsible politicians. Being a "center-right" guy, I am struck more by the excesses of the Left than those of the Right. With this in mind, I don't believe that I have seen a greater degree of divisive public disourse since the Nixon/Vietnam days. I am disregarding entertainer types like Rush or Michael Moore. I am talking about representatives of the core "Establishment." Politicians, "serious" pundits, major news outlets, NGO spokespersons, CEO's and business leaders. Suddenly, nobody seems to think that prudence or decorum matters anymore.

Well, it's not just that. It's more like we are living in an era that combines paranoia and narcissism. "My opinions are right-- completely and absolutely-- and anyone who disagrees with me is an evil and dangerous idiot!!."

I think that I'm gonna have that put on a t-shirt... and make millions selling them!
8.18.2006 5:13pm
Kevin L. Connors (mail) (www):
Hey Eugene: It might have been nice of you to give me a Hat Tip.

J/K ;)
8.18.2006 11:46pm
Kevin L. Connors (mail) (www):
Egad!!! I should have posted the former on this thread.

So many posts - they all look the same!!! What's a boy to do?!?!?!

Again, Eugene - J/K
8.18.2006 11:58pm
Howard Anglin:
Dear Prof. Volokh,

I believe that you mean "denigrate" rather than "derogate" in the first sentence of the last paragraph.

Kind regards,

8.19.2006 12:14pm