, 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
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
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
overturned by the Sixth Circuit, and the the Al Marri panel opinion was
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
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
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.
Why waste your time addressing vitriolic partisans?
Kidding!
(or maybe not-we don't really know what happened behind the scenes....)
Why is Greenwald so anti-intellectual?
I think Professor Kerr has done what GG and many of the commentators of this blog should also try to do. Be reasonable (or at least understanding to the extent that you're willing to try to delineate the argument in order to discover the distinct points of contention), be exact (with the words you choose), and be sure to argue the merits.
(That's his MO when he's teaching his 1L class, at least!)
Otherwise, the discourse will just devolve into boorish rhetorical positioning, or even worse, nonsense (if those are not one and the same!) Maybe this has something to do with why these comment sections have to get shutdown every so often?
There's a point when many people think it goes too far in one direction or the other, but why doesn't he think his position, as to opposed to the one enacted by the current Congress and the W. administration, is the extreme one even if he thinks it's the right one?
And does anyone think Obama, even after Gitmo is closed and many detainees released, is going to put every remaining detainee through the criminal system?
The habeas procedure the S.C. staked out doesn't require this, even if it would be a good idea (and is the historical remedy for a habeas violation), but I don't think Obama will.
Unless the previous commentators are being satirical (in that they are purposely being careless in throwing around those words, when a corollary of OK's post was that people shouldn't carelessly throw around words), these responses are extremely ironic.
But Greenwald is not an academically inclined lawyer. He is a political pundit. For those of that world, the side you choose and the substantive result are all that matters. If you opposed Judge Taylor's opinion, you are on the other side and a Bush administration apologist. If you oppose Roe v. Wade, you are anti-abortion. This is just an alien world to the one you live in. So I doubt that further conversation between you and Greenwald will be much productive.
The bottom line is Prof K knows the law well enough to be a tenured professor. I still have a right to disagree with him. But I'd prefer to engage rather than name-call.
Finally, I'd like to distinguish between the disagreements with someone like Prof. K, and those who actually do (and did) support conservative positions over the last eight years simply because they are (or were) conservative themselves. Prof. Kerr gave the common aside that he has criticized Bush at times in the past. Unlike others in the blogosphere, I believe him and agree he has in an intellectually honest and consistent manner. Others have not. They may deserve a slight level of scorn, but, still, I'd rather engage and disagree.
Also, while I do want to see a move away from the name-calling, there are times when I find it justified to attribute character traits to pundits, bloggers, etc., even when they at times don't explicitly embrace those traits. The best example I can think of now is the Cal Prop 8 issue. I apologize to those who were for the initiative, but I find it discriminatory against gays. That is, I find its supporters real motive is not to protect the "sanctity of marriage," but b/c of animus towards others. I feel that way, even though Prop 8 supporters may never have said "I hate gays."
Greenwald does nothing graciously.
Re: comment 1, amazingly Greenwald is several levels above the vile Sulivan.
You can't argue with the "I'm right, you're evil" line of reasoning.
I suppose that if one thinks that the internet is simply a battleground for flamewars or a showcase for one's own sense of moral superiority, then Prof. Kerr's sin is plain to see - he has failed to lower his rhetorical standards sufficiently to fit in. For shame.
Perhaps, Prof. Kerr, you could reform by pledging to violate Godwin's law at least once a day? No? Ok, how about once a week and then work yourself up?
I don't understand why someone like you would bother with Greenwald, who is not a remotely serious commentator. There's no point in trying to engage someone like Greenwald because he's not interested in a serious discussion, as his remarks regarding you amply demonstrate. You can be as reasonable as you like with him, and he'll still spew vitriol at you because that's the type of person he is. So, I just don't get why you're trying to reason with him.
Except maybe in the banal sense that 50% of all litigants advocate lawlessness.
GG fancies himself the man behind the mask. See http://en.wikipedia.org/wiki/V_for_vendetta Thus the significance of throwing bombs on November 5th. http://en.wikipedia.org/wiki/Guy_Fawkes_Night GG, however, appears to confuse the lack of the reality the former, a comic book hero, with the reality of the reality of the latter, a failed anacharist who was executed.
See how much fun you can have if you take this kind of vacuous reasoning seriously?
1. I read GG as operating with a pretty robust conception of the Rule of Law. Hence "lawlessness" covers any arena over which political actors are able to act against individuals without independent oversight or at least ex post accountability, even if this discretion is authorized "by law." This is about constraint-vs-discretion.
2. He certainly uses outrageous rhetoric; that's because he's outraged. Whether or not the policies are "radical" in terms of popular or political support, he believes them to be a radical departure from our constitutional principles. If you believed as he does, outrage would indeed be the proper response--one of his objections to what's been going on is precisely the willingness to discuss outrageous policies (torture, unlimited executive authority) as if they were reasonable. The argument is simple: constitutional constraint depends on elites and ordinary citizens not merely *disapproving* of governmental overreach but *hating* it, being *outraged* by it--if constitutional violations become merely one area of policy disagreement to be traded off against others, republican government is doomed. (Which, I tend to think, it is.)
I tend to disagree with you on some issues (usually run-of-the-mill 4th Am.) and agree on others (usually 'Cyberspace' law) but I have always found you reasoned and intelligent, and your well-sourced analysis has, at the very least, cause me to re-consider my own positions (if not change them).
You are, um, OK in my book.
Not really. Look at his oeuvre. Greenwald couldn't have, even if his life had depended on it.
Of all the people at the VC to pick on, Greenwald singles out Orin Kerr????????????????????????
Weird, man, weird.
Or: Weird man. Weird.
I heartily concur. One of the reasons I frequent this blog (reading several times a day and commenting rarely) is to challenge my preconceptions and better understand alternative positions on matters of law and policy. I have changed my mind on some issues and tempered my views on others as a direct result of reading this blog (especially OK and EV, and many of the regular commenters as well). Even when I disagree (at times strongly) with the main post, I always come away with a better understanding of the issues and an appreciation for why others could hold an opposing view. The internets need more of that kind of dialogue and a whole lot less bile and vitriol.
Of course, it's fine that Greenwald writes with passion about issues he cares about, and I share many of his concerns. But it's neither necessary nor productive to direct invective against thoughtful proponents of opposing views who are willing to engage in an honest intellectual exchange.
It is a productive strategy if the purpose is to stop debate. I believe that is Greenwald's purpose and it's why he targeted someone as reasonable and fair as Professor Kerr. If Greenwald wanted to promote a free and civil discussion, he'd welcome and encourage Kerr's contributions. He'd hold up Kerr's posts as a model for others, on all sides of any issue, to emulate.
Instead, he attacks as unreasonable one of the most reasonable of voices for expressing a policy view that differs only mildly from his own. Note: It's not appropriate to say Kerr's view is "opposing" Greenwald's. Kerr is NOT the polite and civil voice of conservative opinion. (That would have been William F. Buckley, Jr.) Kerr shares many of Greenwald's policy preferences -- at least their views are closer to each other than Kerr's views are to the conservative position. By attacking someone who is, in the main, an ally of his policy preferences, Greenwald is attempting to restrict the scope of what ideas are considered to be reasonable. If Kerr is to be considered extreme, than anyone a few millimeters to the right is simply beyond the pale.
"[I]t takes some real audacity to scold those who criticize him "as a person" when his entire candidacy was the biggest exercise in personality cultism in modern American history."
Exhibit A. People liked Obama as a candidate. Myself, I agree with his policy positions. I don't think it takes any level of audacity to point out the similarities between Greenwald's name-calling and some of the criticism of Obama.
"The biggest exercise in personality cultism in modern American history"? That's the same hyperbole as Greenwald's "apologist" and "lawless and reckless" rhetoric. That's not engagement in a disagreement on the merits of his policy choices.
Or it could be that Greenwald read and understands the legal statutes which the Buch administration repeatedly violated. Another possibility.
In which case, maybe he should have cited some examples of Kerr defending such actions?
Professor Kerr, move on. Ignore Greenwald. Really, no need to be even remotely thin-skinned about his outrageous comments. He's worth but a small footnote on the list of significant contemporary pundits, and that's only because he's one of the few Internet Trolls who've actually figured out how to get paid Big Buck$ to spew his absolutist bile. In fact, I'd recommend just closing this thread, boldfacing Anderson's pithy observation (and maybe Veal Calf Office's too), and getting on with getting on...
But Greenwald is exactly wrong about Judge Taylor's opinion. I did some work on the FISA stuff back then, and (a) Judge Taylor's opinion is awful, and I don't mean the typical blog comment "Oh it's awful, but I haven't read it, but the criminal should go free/get the death penalty," but in a this-cannot-even-be-considered-analysis kind of awful.
(b) You actually said the NSA program was illegal under FISA's terms, which hardly makes you an apologist,
(c) nor, if I remember correctly, did you buy the "commander-in-chief can do anything" rationale; and
(d) I think all this put you in exactly the same position as folks at Concurring Opinions and other blogs.
So, insofar as Greenwald tries to rely on the fact that someone disagreed with that Taylor opinion as evidence of their insanity, then they likely have not read it.
It may give some satisfaction to be respond to his arguments, such as they are, point by point (it's actually pretty easy to argue with someone that doesn't know what they're talking about), but I don't know why anyone would bother. It's not like he's intellectually honest enough to change his mind (or acknowledge that he was mistaken or wrong).
Or he read it and lost his Crim Law outline and has no understanding of 4th Amendment jurisprudence whatsoever.
Greenwald is being disingenuous. He knows it. He is a comment troll writ large.
Since you said you appreciated the comments I'll add my name to the already long line. While I have occasionally disagreed with you, I have always held out your analysis as the prime example of what legal analysis should be and your tone of debate to be exactly the type of tone we need more of. GG is an embarrassment. Someone above said he is the opposite side of the coin of Sean Hannity, I think that nails it exactly.
Professor Kerr,
You obviously fail to understand that I preemptively won the debate with my earlier statement that "The fact that someone uses professorial and caveat-filled language when defending indecent policies like these may make them civil, but not decent." See? I knew you were going to engage in all of this legal mumbo-jumbo in some sad attempt to legitimize the unlegitimizable. So when you defended yourself on (giggle) substance, you were actually proving my point. For the sake of the enlightenment of my readers, every legal argument you make has already been pre-identified by yours truly as a kind of Legal Voodoo of the John Yoo variety. The more you dissemble, the more correct you prove me to be.
Now, you can disagree, but then you'll just be proving your own intellectual dishonesty.
What is controversial about that?
When a federal judge declares that the Fourth Amendment requires prior warrants for all reasonable searches, we're into cuckoo land, and a law professor pointing out the cuckooness should be expected.
IANAL, but let's look at these two separately.
First, I think that criminal law exclusively does address the Al Murri case in the same way that the general authorization to use military force should not have lead to mass detentions of Japanese in the internment camp system. If criminal law is not enough, then Congress can suspend habeas corpus and essentially cede all authority temporarily to the executive in this manner.
Now, on the NSA wiretapping case, the Washington Post has written some interesting articles on the role of the FISA court in this area. The FISA court had apparently ruled that the wiretapping was constitutional, provided that the data collected was not available to domestic law enforcement, and that no search warrants could be issued based on the information. Apparently, on several cases, members of the DoJ blew the whistle on violations of this ruling and the program was ordered suspended until the issues could be cleared up.
I think that the FISA court's position is reasonable in this case, that a blanket search is Constitutional provided that:
1) The targets are foreign persons (neither residents nor citizens of the US) and
2) The information is not available for domestic search warrants and can only be used as foreign intelligence.
In my view, such a search, limited in its scope and applicability in the above manner is quite reasonable. However it becomes unreasonable the moment a single US person is subject to a search warrant based on the information found in that blanket search.
If you give the government additional authority to detain people they say they believe to be terrorists, you have no guarantee that this will be done as intended.
It's true that this is consistent with Orin's tendencies and his objectives for this blog. But I'll bet he'd have taken the same approach here regardless, for a different reason: He's smart. He knows that when someone overreaches like GG did, especially while attacking you personally, nothing skewers them like engaging the attack in the most civil, substantive way possible, without so much as a hint of snark or defensiveness. It's the perfect jiu-jitzu because once the fallacies have been exposed, the person who leveled the baseless attack is the only one visible to judge.
I'm a frequent fan of GG's work. I think he's done some useful analysis and made effective arguments I agree with. But I can't help believing that as soon as Orin saw this attack, like a chess player who sees his opponent make a fatal move, he starting enjoying the picture in his mind's eye of how this would play out.
"Greenwald and Olbermann have some sort of feud"
This says just about all that needs saying. 95% pissing contest, 5% analysis.
"You can't argue with the "I'm right, you're evil" line of reasoning."
I believe he just did, and emerged victorious.
I think OK needs to pick on someone his own size next time, frankly.
Well, people vote for the who the candidate is as a person, and the candidates campaign on who they are as persons. Lots of people tell us policy should be front and center because they want to talk about policy. That's fine, but that's not what most people use as a basis in casting their votes. They vote for a person. Polices aren't candidates.
One guy said over and over he wanted change, and that's sure not even close to being a policy. The other guy said he was a maverick, and that's as bad as change.
Actually, the other guy said he was a maverick and wanted MORE change. That was one of the big reasons I voted for Obama.
Well at least you still got your libertarian bona-fides. People do realize the hilarity of this scene?
A liberal blogger accusing a blogger on a libertarian site of not being libertarian enough and the libertarian defends himself by out liberaling the liberal.
Only in America.
BTW morons, Greenwald was a former constitutional litigator. He isnt just some journalist who thinks he is matlock.
And for the record, I am just as or more outraged than Mr Greenwald over what the White House under Bush allowed to happen to the so-called Rule of Law under the unitary executive and what the apologist Dem majority Congress let them do and retroactively made A-OK. We all should be weeping for what has taken place by those on both sides of the aisle. IF the American people had half a brain, every single incumbent would have been thrown on their rears because it is ALL of them that is the problem.
[OK Comments: Crust, I have turned off comments to the relevant threads. Greenwald's links generally come with an army of dittoheads who are eager to attack but don't actually know what my positions actually are. I put some time into responding to them and explaining my position, which shows the error, but I have found it a fruitless exercise. It's not the Internet at its finest, unfortunately.]