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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.
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.
Does Civility Make You an Apologist For Lawlessness? One More Round With Glenn Greenwald:
Glenn Greenwald has a new post (see item 8) taking issue with the many bloggers and commenters who disagreed with his description of me as an "aplogist . . . for many lawless and radical Bush policies." They are wrong and he is right, he is insisting, and he offers a new explanation of why: My description the other day of Law Professor Orin Kerr as a leading apologist for radical and lawless Bush policies — a description I documented in the update to the post — spawned all sorts of consternation among his friends and admirers. You see, he's so reasonable and civil and polite in how he conducts himself that it's really wrong to say anything so critical about him.
But, as one of his own commenters pointed out so adeptly, that is precisely the point: "Whether or not the policies are radical in terms of popular or political support, [Greenwald] 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."
That's exactly the point. The Bush administration was able to get away with its extremism and lawlessness over the past eight years because elites and "experts" sat around oh-so-civilly and self-importantly and reasonably debating these actions as though they were legitimate, as though support for those policies was worthy of serious and respectful consideration, as though the advocates of these policies were Serious People within our political mainstream, and — most of all — as though outrage and anger and revulsion over what the Bush administration was doing was only for the shrill, irresponsible and uncouth rabble. What a curious perspective on the world. If I understand Greenwald correctly, I deserve condemnation for taking arguments seriously: in his words, I "reasonably debat[ed] these actions as though they were legitimate, as though support for those policies was worthy of serious and respectful consideration." In other words, I was an apologist for lawless and radical Bush policies even when writing posts that rejected them. By rejecting positions through reason rather than invective, I legitimated the positions I rejected.
I think Greenwald has it exactly backwards, though. If you actually want to persuade folks who haven't made up their mind already on ideological grounds — that is, the crowd that is open to persuasion --invective won't cut it. You need real arguments, and you need credibility, and you can get that only by taking arguments seriously and evaluating them on the merits free of insults and abuse. You don't need to express "outrage" to make the point; in fact, outrage only takes away from it. My approach doesn't sell a lot of books, I realize, but I think it does get to the bottom of things.
In any event, if Greenwald's indictment is that I treated arguments with respect, argued ideas rather than people, and reached the merits without dismissing opponents out of hand, then I happily plead guilty. 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:
Post Script on Greenwald:
Glenn Greenwald has yet another post up defending his description of me as an apologist for lawless and radical Bush policies. As you might expect, it is highly dismissive: My arguments are a "transparent and ludicrous" straw man; I am ignorant; I am willfully distorting his views; I am just like John Yoo, etc. (That's a third mention of myself and Yoo together, for those counting at home.) My original goal in responding to Greenwald was to see if there was any substance to back up the bluster. I think it's fair to say that question has been answered, so it's time to move on.
A final thought: In the unlikely event that someone reads Greenwald's summary of my positions instead of my own writings, I should point out that Greenwald's description of my view on Al Marri is quite inaccurate. My views of the case are a lot like Judge Traxler's in the en banc decision; read my old posts on the case for more.
UPDATE: To be specific, contrary to Greenwald's claim, I reject the idea that the Executive branch has some sort of inherent Article II authority to detain citizens and legal residents inside the United States outside the criminal justice system. Greenwald imagines that I endorse that Article II position and then devotes half of his post to saying how it justifies his description of my views. But I have never taken that position, and it is not my view. Just to clarify, my view is that Ex Parte Milligan settled over a century ago that such powers to detain citizens don't exist. Milligan is one of the great civil liberties decisions in constitutional law, and I think it is absolutely right. It is unclear to me why Greenwald thinks I am taking a different view, but he is wrong to imagine that is the case.
Following up on my posts on al Marri from last year, my view is that (a) the AUMF authorizes the detention of al Qaeda members if the appropriate due process protections are followed, and (b) the due process protections for non-citizen, non-legal residents in the U.S. are properly determined under the Hamdi balancing approach. This was the view of Judge Traxler in his en banc opinion, and I think Judge Traxler was right about this. The reasoning would not apply to U.S. citizens detained in the U.S., as they would be covered by Milligan rather than Hamdi, but it would apply to U.S. citizens in war zones abroad (the holding of the Supreme Court in Hamdi). I'm not really sure what the right level of due process protection is under Hamdi; the Hamdi balancing approach is pretty vague, and there's a wide range of plausible ways to apply it ranging from pretty high due process protections to lesser protections. There doesn't seem to be a clear answer to this based on current law, and I don't have any easy answers to it, but something like Judge Traxler's approach is at least a not-implausible outcome.
Anyway, I don't know whether Greenwald is interested in whether he is accurately stating my views, but I did want to explain Greenwald's misrepresentation for readers.
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