I am clueless about FOIA and related law, but would be interested in knowledgeable responses to the following question. Is there a mechanism by which an individual can find out, or require the government to disclose, whether he or she has been named (or some web posting, statement, or other form of speech of the person named) to the White House email address for submitting "fishy" "disinformation" on the health care debate?
White House Press Secretary Gibbs denied that the White House is "collecting names," but it is hard for me to see how, if it is seeking to counteract what it regards as "disinformation" or "fishy" stuff, it can do so without keeping track of that which it wants to respond to and that which it doesn't. In any event, is there a way that a citizen can force the government to disclose if he or she has been flagged to the White House?
I have also been trying to figure out what, if anything, the ACLU has said officially on the subject. I served for several years on the Free Speech Policy Committee of the ACLU way back when, and I can't imagine that back then it would not have taken a strong position on such a move by any White House, regardless of party. On the other hand, as Wendy Kaminer has shown, it's not that ACLU anymore, so I'm not so sure.
I've been on the ACLU official website and don't seem to find anything, but maybe I'm just not navigating it expertly. One reason I think there must be something there that I'm not finding is that FoxNews reports that in response to an inquiry, the ACLU responded:
The ACLU said in a statement to FOXNews.com that the White House blog is a "bad idea that could send a troublesome message."
But the organization added, "While it is unclear at this point what the government is doing with the information it is collecting, critics of the administration's health care proposal should not fear that their names will end up in some government database that could be used to chill their right to free speech."
I imagine that if the ACLU issued a statement like that, it should appear somewhere on its website, so if someone could point me to it, or anything else the ACLU has said on the matter, I'd appreciate it.
If it is an accurate statement of the ACLU's position, I do not exactly understand the following. (This is a question quite apart from how this position is consistent with the ACLU's traditional protectiveness of speech against the government.) How does the ACLU get from "unclear at this point what the government is doing with the information" to the reassuring (on what basis, one wonders) conclusion that "critics ... should not fear that their names will end up in some government database"? Moreover, how does the ACLU get from there to the conclusion that critics should not fear that they could end up in some database that "could be used to chill their right to free speech"?
How could the ACLU possibly know any of this? How could it possibly know this given its own statement that it is "unclear" what the government is doing with the information? Did the ACLU obtain some court order ensuring this that I don't know about? Did it have a conversation with the Obama administration, to which it grants credence it has not traditionally granted any government administration? And in any case, how does it get from "unclear" to "should not fear"? It is a statement far enough from traditional ACLU views that I wonder whether it is actually accurate, and I would welcome anyone pointing me in the right direction at the official ACLU website to clear up its official position.
(Update: MH at 10:42 says:
I'm puzzled by the ACLU's wording too. Calling it a bad idea and saying they are unsure of what the administration plans seems inconsistent with the last statement. Perhaps the spokesperson meant to say "critics of the administration's health care proposal should not have to fear that their names will end up in some government database that could be used to chill their right to free speech"?
That wording would make a lot more sense to me, too. Could that be the ACLU's actual position? ... A day later, I haven't seen anything to indicate that the FoxNews statement is not an accurate statement of the ACLU's position; please advise if that turns out not be be so.)
I realize this is a pretty incendiary topic, on which I certainly have opinions, but in this case I'm really looking for knowledgeable views on the freedom of information questions, as well as the official ACLU view, if any.
(Update note: Generally: I'm looking for legally knowledgeable information about how and whether it is possible to find out whether one's name has been sent to a White House email address, in which the White House affirmatively created the account and invited people to send in information. I'm interested in hearing from people who actually know the law about this. I do not practice in this area, and I'm asking a question about the law. Re the ACLU, I'm trying to figure out what it's position is, and specifically to find out how, if at all, it differs from what was quoted in a FoxNews story. Again, I'm not actually inviting general comments of an incendiary nature, in any direction.
To 9:49 (and if the comment was satirical, my apologies for getting slightly huffy here): I'm afraid I don't understand, first, how it is "rank paranoia" and "shameful" to ask a question as I did (see above). Second, I do not see in what sense it has been asked in anything but a "civil" tone. It does not seem to me paranoid, shameful or even the slightest bit peculiar to ask, if the White House sets up an email address and invites citizens to send information concerning their fellow citizens, how and whether one might find out whether one's name appears therein. It strikes me as ordinary and normal.
In any event, going to the question of the ACLU and its role - well, one of the general propositions of the ACLU's Free Speech Policy Committee, when I served on it, was that citizens were quite entitled to ask questions of government, and to ask them whether or not they seemed to government, or anyone else, paranoid or shameful or unworthy. And that as a general matter, government had an obligation to respond to them, or make an affirmative showing why it would not. Government would often disagree, and then the ACLU would entertain the possibility of going to court. As well it should.
Re: 10:23. I imagine that this web move was indeed some WH staffer's not-so-bright idea. That happens in lots of White Houses. In that case, there is traditionally a sharp, vicious reaction out in the world at large, the White House mumbles some sort of statement that it there was some miscommunication and issues a quasi-apology while trying to save face, the offending thing disappears, and some hapless staffer loses his or her job. Pretty much as happened with the Air Force One flyover. What is disconcerting is that this has not happened, at least not so far.
A final rushed, alas cryptic update, and then I've gone internet dark:
I will simply say in all candor that I do not understand that there is a meaningful difference between citizens reporting "rumors" and such in the abstract to the White House email address, and reporting on fellow citizens. It has been a theme of many of the comments, and with all respect, I think it is a difference without a distinction. Certainly it is the sort of distinction that civil libertarians have long rejected, as a matter of principle.
The principle, however, is not precisely the one that the commentators seem to be saying. Commenters on this thread, at least, seem to be taking the view that you treat everything the administration is doing in good faith so that unless someone presents evidence of - well, I'm not clear what for many of our commenters would actually count as something, but let's say something that would cross the line. Short of presenting evidence of that, good faith requires that we trust the government. Other commenters naturally take the opposite view and claim that the administration acts per se in bad faith.
The American constitutional tradition, I suggest, is quite different from either - and consists of two not entirely consistent strands. First, it consists in not trusting the government. The freeborn citizens of this country have zero obligation to accept the government's claims that it collects information or does much of anything else in good faith; the government has the obligation, as a general presumption - it can be answered, yes, but still a presumption of popular democracy - that it, not the citizens, has to account. We honor that ornery, recalcitrant position not because we think it is always right, but because it is a considerable bulwark, procedural as well as cultural, against tyranny. That's why, crazy as I personally happened to think the left was acting during much of the Bush years, there was a certain abstract honor in it. But - and this is the crucial but - only as long as you are willing to grant the same to the other side in the alternation of power.
The second is a constitutional tradition of doing the opposite of what I just stated above. One way of defining the role of 'His Majesty's Loyal Opposition', to express it anachronistically, is to say that it expresses its views, not by taking the majority's positions as being in good faith - but in 'suspending public disbelief' in the bad faith of the majority.
Yes, that's a mouthful - and it is a very difficult balancing act. It requires acting as though one takes the majority's policies, proposals, etc., not in bad faith - which, however, is not quite the same thing as taking them in good faith, or even as though in good faith. There are subtle differences in affect, attitude and action as among these. But the problem of the loyal opposition is to walk as far as it can disagreeing with the majority's preferred policy, while still accepting that it is offered in good faith. At some point, it might not be able to do so, in which case, well, see the first, above. It won't be possible to give an a priori rule telling one when that point, in good faith of its own, has been reached, alas; hence many battles of the kind we are seeing over claims of good and bad faith. But the essential line is not really between good faith and bad faith - it is when the loyal opposition should drop a certain public presumption of good faith. On the matters of policy substance - raise taxes, lower taxes, etc., that should be regarded as a very drastic step. It has not been, by either party, in recent administrations.
However, one thing that the loyal opposition is always right to insist upon is that the 'traditions of process' be observed punctiliously - because those are the traditions of office by which the majority governs and to which the minority aspires. The office, including its sacralization through those traditions of process, is greater than either.
Again, to be blunt, however, the current administration does not seem to regard the office as greater than it. Hence the dispensability of traditions by which the office is honored. In my view, they include that the office of the President of the United States not ask one group of loyal citizens to inform on the indisputedly lawful, constitutionally protected speech-activities (even if you think there's a difference between that and the citizens themselves, which I don't) of another group of loyal citizens. The president of the United States has treated the constitutional speech of citizens as - phrasing here is important, and it is not the equivalent of "the same as" - not sufficiently distinguishable from asking citizens to be on the lookout for suspicious activities that might turn out to be perfectly legal, but might turn out to be a bomb on an airplane, but in which there is a legitimate question of sifting for possible grave and violent criminality. We don't really like it in the latter case - and shouldn't - but accept some part of it, even while arguing over its extent, because it is related to a function of government to protect the physical security of the commonweal against mass criminal violence, for example, mass terrorism. In the current situation, however, there is no question of criminality or the need to have a suspicion thereof. The speech is all constitutionally protected, and so even that reason of state, and not simply the desires of a political administration, is quite absent.
Why such a blunder over something that, at least if one is minimally attuned to the traditions of the office, is fairly obvious? At risk of giving great offense to many friends and correspondents, the current administration seems curiously to believe that it honors the office, rather the other way around. Moreover, the presence of - once again, so many friends and colleagues and correspondents, so risking offense - so many luminous and glittering intellectuals does not help the administration to find a certain humility in the mere office of the presidency. I imagine one reason is that a not-insignificant number do not especially see the office as having any special moral standing, compared, they would say, to a more just and universal institution of governance. A certain form of cosmopolitanism risks blinding one to the nuance of actual political communities, and to confuse their constitutive political elements with their mere politics.
Nor does it help matters that the prevailing intellectual (as distinguished from strictly political) mood within is one of pragmatism. Mere ordinary people will tend to believe that pragmatism is essentially a synonym for "moderate." It was part of the basis on which the Obama administration was elected - pragmatic moderates who would rule through the virtues of technocracy.
But pragmatism as a political philosophy in this case is not strictly a matter of devotion to moderation. It might be. But then it might not. As a political program, it can have the virtue of lowering the affective temperatures of politics - as happened, for example, in the generation in Scotland following the civil wars, for whom pragmatic, technocratic language ("and now, a Report on the types and numbers of cattle in Certain Highland Villages") offered a neutral language out of the wars of religion. But pragmatism is not essentially moderate or immoderate; pragmatism is essentially unconstrained except by its own calculations of a remarkably reductionist moral psychology, which is both its virtue and vice. It arises out of certain versions of utilitarianism, and in that consideration, such things as the embodiment of rights within a political tradition means something very different from what ordinary people might have thought.
This is equally a problem of pragmatists of the left and right, to be sure. But it is the pragmatism of the left that currently governs. Pragmatism in pursuit of ends that technocrats in majoritarian power have determined to be welfare maximizing has license to be radical and not always moderate, if that is what it takes. What matters are the costs on the other side. At this very moment, however, it might say, considerable numbers of people appear to have drawn from that a need to raise those costs across the country: and yet the pragmatists would be right in substance but wrong as to what people think they are doing. They think they are exercising their rights to speak and force their political representatives - not rulers - to hear them. Pragmatism's virtue is its pursuit of sense. The problem, however, is that a democratic polity consists partly of technocratic sense, but also of sensibility and that sensibility is embedded primarily in its traditions of process.
(Look, I do understand entirely that half the readers are yawning because this is all so obvious - whereas the other half simply lack the receptors for the kinds of moral distinctions I am suggesting; it is as though, cribbing William James, I were trying to convert them to the gods of the Aztecs. The whole debate and all these distinctions don't register, just as certain things quite fail to register with me, such as the distinction between collecting information on what one's fellow citizens are saying but not collecting information on them. We try through mechanisms of cultural assimilation to prevent those gaps from growing too large, and in our public life, we properly try and rely upon the suspension of public disbelief about the good faith of the other. When those run out of grip upon us, we have a big problem.)
See Burke on all of this, but particularly on his notion of the sublime, to grasp his moral psychology prior to reaching to his (often quite inconsistent) politics. There are subtle differences of sensibility in a democratic polity that the prevailing rationalist, reductionist pragmatism fails to capture, because it insists that all debates are over sense, rather than sensibility. (See also, a trifle weirdly, my post below about girls and college admissions, and how Austen no longer counts; fuse it with this one to grasp why the de-emphasis on Austen, and by extension the inability to use a language of politics to express a view on sensibility as well as sense is a way in which the intellectual class denudes our political language of the subtlety necessary to capture even the concept of a "loyal opposition" in a democracy. La trahison des New Class? Yeah, something like it.
I leave everyone else to sort it out, as I am going offline and won't be reading comments. I am sorry if I have offended a sizable number of people with this addendum. I'm also sorry that it sounds like what it is - a professor writing at high speed; I don't have time to go back and amend or edit. But my general view of this is captured by Peggy Noonan's weekend column and likewise, even more strongly if possible, a passing remark of hers a week or so ago in a WSJ column, to the effect that we need to revive the category and analysis of the New Class. Amen to that. Agree with her or not; she's eloquent and clear - even if I'm not.
But most damagingly to political civility, and even our political tradition, was the new White House email address to which citizens are asked to report instances of "disinformation" in the health-care debate: If you receive an email or see something on the Web about health-care reform that seems "fishy," you can send it to email@example.com. The White House said it was merely trying to fight "intentionally misleading" information.
Sen. John Cornyn of Texas on Wednesday wrote to the president saying he feared that citizens' engagement could be "chilled" by the effort. He's right, it could. He also accused the White House of compiling an "enemies list." If so, they're being awfully public about it, but as Byron York at the Washington Examiner pointed, the emails collected could become a "dissident database."
All of this is unnecessarily and unhelpfully divisive and provocative. They are mocking and menacing concerned citizens. This only makes a hot situation hotter. Is this what the president wants? It couldn't be. But then in an odd way he sometimes seems not to have fully absorbed the awesome stature of his office. You really, if you're president, can't call an individual American stupid, if for no other reason than that you're too big. You cannot allow your allies to call people protesting a health-care plan "extremists" and "right wing," or bought, or Nazi-like, either. They're citizens. They're concerned. They deserve respect.