The Volokh Conspiracy - Greenwald Responds:

In a post yesterday, I asked what Glenn Greenwald might have in mind when he said that I was "a leading apologist for many . . . of the lawless and radical Bush policies of the last eight years." Glenn has now graciously responded:

Orin Kerr, who specializes in using professorial and self-consciously cautious language to endorse radical surveillance policies, feigns shock that I characterized his positions the way I did, and asks: "does anyone know what 'lawless and radical' policies I apparently served as an apologist for?"

Greenwald then offers four positions I have taken in the last eight years in which I have allegedly been an apologist for "lawless and radical Bush policies." They are, with links in Glenn's update, as follows.

To read the rest of this post, click here.

  1) Although I criticized the Protect America Act of 2007 on some grounds, I thought its basic structure was actually pretty good;
  2) Relatedly, I thought the FISA Amendments Act of 2008 struck a pretty decent balance between privacy and security;
  3) I criticized Judge Taylor's initial NSA opinion for being poorly reasoned; and
  4) I disagreed with the Fourth Circuit's initial panel decision in al Marri, the case that said an al Qaeda agent in the United States could not be detained under the AUMF.

  Greenwald concludes that in each of these four instances, I took positions that were "radical and lawless":

Those are policies that are radical and lawless. Kerr repeatedly served as an apologist for them — hence, my characterization. The fact that someone uses professorial and caveat-filled language when defending indecent policies like these may make them civil, but not decent. Ask John Yoo (I'm not equating Yoo and Kerr), or see this superb satirical post on the vital and oft-overlooked distinction between civility and decency.

  I certainly appreciate Greenwald taking the time to explain his position. Also, I appreciate his reading the blog. At the same time, his evidence doesn't support his claim.

  The first problem with Greenwald's position is that every one of my positions was shared by the other branches of government beyond the executive branch. The Protect America Act and FISA Amendments Act are not lawless Bush Administration policies. Rather, they are legislation passed by a Democratic Congress in response to (lawless) Bush Administration policies. And my view has prevailed in the NSA and al Marri cases: Judge Taylor's decision was 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.

	[Orin Kerr, November 6, 2008 at 12:48pm] Trackbacks Greenwald Responds: In a post yesterday, I asked what Glenn Greenwald might have in mind when he said that I was "a leading apologist for many . . . of the lawless and radical Bush policies of the last eight years." Glenn has now graciously responded: Orin Kerr, who specializes in using professorial and self-consciously cautious language to endorse radical surveillance policies, feigns shock that I characterized his positions the way I did, and asks: "does anyone know what 'lawless and radical' policies I apparently served as an apologist for?" Greenwald then offers four positions I have taken in the last eight years in which I have allegedly been an apologist for "lawless and radical Bush policies." They are, with links in Glenn's update, as follows. To read the rest of this post, click here. 1) Although I criticized the Protect America Act of 2007 on some grounds, I thought its basic structure was actually pretty good; 2) Relatedly, I thought the FISA Amendments Act of 2008 struck a pretty decent balance between privacy and security; 3) I criticized Judge Taylor's initial NSA opinion for being poorly reasoned; and 4) I disagreed with the Fourth Circuit's initial panel decision in al Marri, the case that said an al Qaeda agent in the United States could not be detained under the AUMF. Greenwald concludes that in each of these four instances, I took positions that were "radical and lawless": Those are policies that are radical and lawless. Kerr repeatedly served as an apologist for them — hence, my characterization. The fact that someone uses professorial and caveat-filled language when defending indecent policies like these may make them civil, but not decent. Ask John Yoo (I'm not equating Yoo and Kerr), or see this superb satirical post on the vital and oft-overlooked distinction between civility and decency. I certainly appreciate Greenwald taking the time to explain his position. Also, I appreciate his reading the blog. At the same time, his evidence doesn't support his claim. The first problem with Greenwald's position is that every one of my positions was shared by the other branches of government beyond the executive branch. The Protect America Act and FISA Amendments Act are not lawless Bush Administration policies. Rather, they are legislation passed by a Democratic Congress in response to (lawless) Bush Administration policies. And my view has prevailed in the NSA and al Marri cases: Judge Taylor's decision was 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. Related Posts (on one page): Post Script on Greenwald: Does Civility Make You an Apologist For Lawlessness? One More Round With Glenn Greenwald: Greenwald Responds: