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Criticizing People Who May Have Inadvertently Helped the Enemy:

My Deterring Speech: When Is It "McCarthyism"? When Is It Proper? (93 Cal. L. Rev. 1413 (2005)) is finally out; I thought I'd blog an excerpt here, on criticizing people who may have inadvertently helped the enemy. I omit the footnotes, but they're all in the PDF; if you question whether one of my assertion is well-supported, please check the footnotes first to see if they may answer your question.

"To those who scare peace-loving people with phantoms of lost liberty," Attorney General Ashcroft famously said not long after September 11, "my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America's enemies . . . ." That's McCarthyism, some replied.

Here's another quote, this one from the president: "Our nation has felt the lash of terrorism. . . . We can't let [a certain group] turn America into a safehouse for terrorists. Congress should get back on track and send me tough legislation that cracks down on terrorism. It should listen to the cries of the victims and the hopes of our children, not the back-alley whispers of the [group]." The president was Bill Clinton, and the group that he was condemning was the "gun lobby," which opposed some gun-control proposals that Clinton favored.

Likewise, following the Oklahoma City bombing, President Clinton argued on national television that violence is caused "not just [by] the movies showing violence. It's the words spouting violence, giving sanction to violence, telling people how to practice violence that are sweeping all across the country. People should examine the consequences of what they say and the kind of emotions they're trying to inflame." He might have meant to condemn only those who actually urge violence, and not those who simply "giv[e] sanction to violence" by harshly criticizing the government. But his words could also have been interpreted (and were interpreted, by at least one sympathetic commentator) as a criticism of strident anti-government rhetoric more broadly.

Similarly, consider Winston Churchill's lament that his critics' wartime statements were (among other things) "weaken[ing] confidence in the Government," "mak[ing] the Army distrust the backing it is getting from the civil power," and "mak[ing] the workmen lose confidence in the weapons they are striving so hard to make," all "to the distress of all our friends and to the delight of all our foes." And, finally, consider this quote from George Orwell during World War II: "Pacifism is objectively pro-fascist. This is elementary common sense. If you hamper the war effort on one side, you automatically help out that of the other." Orwell's message, I take it, was this: The pacifists' tactics only aid the Nazis, for they erode the Allies' national unity and diminish their resolve. They give ammunition to the Allies' enemies.

Such statements have some things in common. They accuse people of doing things that help the enemy. The great majority of the accused are probably decent people, who have no desire to help terrorists or Nazis.The statements may also deter dissenters: People don't like to be told that they are helping the nation's mortal enemies, especially when the charge comes from an official to whom millions listen. Even if the accused think the accusation is unjust, they may keep quiet, or at least tone down their arguments, to avoid such attacks in the future. The accusers likely intended to deter dissent by making potential dissenters feel embarrassed to make certain criticisms that the accusers thought baseless and harmful.

And the accusations may also have been factually correct. Pacifists' opposition to the Allied war effort may have helped the Nazis as much as pro-Nazi opposition would have. Excessive insistence on gun owners' rights might likewise help terrorists. Similarly, criticisms of the administration's actions may well erode national unity, diminish national resolve, give ammunition to our enemies, and aid terrorists. This is especially true when the criticisms come from legislative leaders. Recall that Ashcroft's statement came at a hearing organized by Senator Patrick Leahy, then-chair of the Democrat-run Senate Judiciary Committee and a leading adversary of Ashcroft.The hearing had apparently been called in part to criticize the administration's antiterrorism policy on civil liberties grounds. Enemies who see our political leaders divided on the war on terror may well be em-boldened, and foreign neutrals may see us as less likely to prevail than if we seemed united. Such internal division may well "distress . . . all our friends and . . . delight all our foes." And if Senator Leahy's and others' criticisms were indeed unfounded or at least exaggerated (a hotly contested position, of course, but one that Ashcroft defended on the merits in his testimony), then Ashcroft could have reasonably concluded that the critics' actions were both unjustified and dangerous.

Good intentions may sometimes yield bad results. That's true of well-intentioned administration actions, which the party out of power often warns about. It's also true of well-intentioned criticisms of such actions. If such bad results seem likely, then the public ought to be warned of this danger, though of course those who disagree should likewise argue that the danger is itself a "phantom."

And government officials are as entitled as anyone else to note such dangers. The administration, which is responsible for keeping the country safe, has a responsibility to warn of a wide range of dangers. People who ignore the danger, if the danger is real, may well deserve to be criticized. And when political leaders debate questions of liberty and national security, plausible claims that one side's actions may jeopardize liberty may reasonably be met by plausible claims that the other side's actions may jeopardize security.Now it's true, as many critics argue, that such accusations try to move people through fear. But terrorists ought to be feared. Many groups rightly try to influence voters by making them afraid of environmental catastrophe, crime, gun violence, terrorism, war, special interests, or suppression of civil rights. Well-founded fear is better than foolish fearlessness. Some fear is excessive or even irrational, but some is eminently justified, or is at least a reasonable response to uncertainty.

It's also true that politicians sometimes harness fear for political advantage. That's what they're supposed to do in a democracy. When national security is a big part of an election campaign, each side likely believes that its program will protect the nation, and the other side's will (at least comparatively) endanger the nation—and each side then has the right and even the duty to make these arguments to the voters.

In 2004 Democrats sincerely believed that reelecting George W. Bush would endanger America, because they thought that Bush's national security policy was dangerous. House Minority Leader Nancy Pelosi, for instance, argued that "the president has failed in how he has tried to protect America. . . . We are less safe—we are less safe because he is president . . . ." Republicans sincerely believed the same of Kerry, and argued accordingly. One might find one side's case to be erroneous or even dishonest, but making fear of terrorism an "underlying theme of domestic and foreign policy" is quite proper when terrorists are doing frightening things.

Yet at the same time, pointing out (even if accurately) that criticism of the administration is helping America's foreign or domestic enemies has costs. To begin with, it can distract from the legitimate arguments that the critic is making. Perhaps paying more attention to civil liberties will actually help the war effort by showing us to be a humane and tolerant nation and thus making us more popular throughout the world. Or maybe broadly protecting civil liberties will hurt the war effort, but some cost to the war effort is a tolerable price to pay for preserving our traditional rights.

Moreover, arguing that critics of the government are helping our enemies can wrongly tar people with the implication of bad purpose, even if no such charge is explicitly made. This may be unfair. It may breed unnecessary political hostility—not just disagreement but contempt or hatred— that is itself harmful to the nation. It can overdeter speech by making speakers afraid to level even those criticisms that, on balance, help the country more than hurt it. As Orwell himself wrote, just two years after the lines I quote above,

We are told that it is only people's objective actions that matter, and their subjective feelings are of no importance. Thus pacifists, by obstructing the war effort, are "objectively" aiding the Nazis; and therefore the fact that they may be personally hostile to Fascism is irrelevant. I have been guilty of saying this myself more than once. . . .

In my opinion a few pacifists are inwardly pro-Nazi . . . . The important thing is to discover which individuals are honest and which are not, and the usual blanket accusation merely makes this more difficult. The atmosphere of hatred in which controversy is conducted blinds people to considerations of this kind. To admit that an opponent might be both honest and intelligent is felt to be intolerable. It is more immediately satisfying to shout that he is a fool or a scoundrel, or both, than to find out what he is really like.

Now perhaps Orwell's change of mind was occasioned by the change from the dark days of 1942 to post-D-day, post-Stalingrad 1944. It is easier to be generous to those who, in your view, helped Hitler (even unintentionally) when Hitler is nearly defeated. Yet I think that Orwell's second thoughts, whatever their reason, were objectively the right ones. Explaining why your adversaries' arguments unintentionally help the enemy is legitimate. But expressly acknowledging that this effect is likely unintentional—even when you're tussling with a senator who you think has unfairly attacked you—is fairer, less politically divisive, and often more rhetorically effective. I suspect John Ashcroft's quote alienated more Americans than it persuaded. Likewise, the vitriolic Bush-the-Nazi attacks from some parts of the Left probably, on balance, helped Bush in the 2004 election.

So it seems to me that, first, the quotes with which I began this Part could have been put better. Second, because people tend to overestimate the bad effects of their adversaries' speech, we should often be skeptical about allegations of such bad effects. And third, such allegations provide a convenient way to evade (deliberately or subconsciously) the substantive criticisms leveled by the adversaries' speech.

Nonetheless, responding to such allegations with charges of McCarthyism is likewise a convenient way to evade the merits of those allegations. If Ashcroft, Clinton, Orwell, and Churchill were wrong in their estimates of the harm that their adversaries' arguments were causing, one should certainly call them on that. One should do likewise if the harms are exceeded by the benefit of the remedies that the adversaries propose. But these arguments need to be made on the merits. Labeling allegations as "McCarthyism" is likely to distract listeners more than it helps them assess which allegations are sound and which aren't.

Medis:
I didn't entirely follow the structure of this argument. In two paragraphs in the middle, you note that such allegations can have costs even if they are accurate. But you seem to end by concluding that arguments against such allegations should be based purely on the individualized "merits" of the allegations.

This seems inconsistent to me. Why is it not fair to continue to argue that such allegations are generally harmful regardless of the individual merits of the allegations, and thus construct an argument against this entire kind of allegation? And although it may be unnecessarily distracting, it seems to me that "McCarthyism" is often operating as simply a pejorative label for this kind of allegation.

Of course, perhaps you did not mean that contrary arguments should be restricted to the individualized merits of the allegations--but that is what it sounded like to me.
1.11.2006 3:16pm
Evelyn Blaine:
All that I have said and done,
Now that I am old and ill,
Turns into a question till
I lie awake night after night
And never get the answers right.
Did that play of mine send out
Certain men the English shot?
Did words of mine put too great strain
On that woman's reeling brain?
Could my spoken words have checked
That whereby a house lay wrecked?
And all seems evil until I
Sleepless would lie down and die.

- from Yeats, "The Man and the Echo", in Last Poems
1.11.2006 3:32pm
AF:
The Clinton quote has nothing to do with the topic hand. Clinton said "Congress . . . should listen to the cries of the victims and the hopes of our children, not the back-alley whispers of the [group]." His point was that the "group" was wrong on the merits and shouldn't be listened to, not that it should stop speaking because it was helping the enemy.
1.11.2006 3:44pm
Juan Notwithstanding the Volokh:
Prof. V:

Which is worse? Accusing your political opponents of aiding the enemy by their speech or labelling such accusations McCarthyism? Or are they equally bad?

You seem to think the latter is worse. Leaving aside Clinton and Churchill, you think it's at least somewhat true that criticizing the administration somehow helps terrorists and that accusations of such should be "put better." On the other hand, you think the McCarthyism charge distracts listeners more than it helps them assess the merits.

But why is that so? What if Ashcroft's critics had simply said: "You are overestimating the effect of our speech, unfairly associating us with the enemy, and implying that any effect our speech has is intetional when you have no basis to say so. In addition, you are avoiding the merits of our argument." Isn't "McCarthyism" a fairly good shorthand for that longer statement? The implicit accusation in "McCarthyism" is that the speaker is unfairly associating another person with the enemy, which is at least part of what you say is a justified criticism of accusations of aiding the enemy.
1.11.2006 3:56pm
M.A. (mail):
All this assumes that Bush or whoever actually believes that dissenting statements give aid and comfort to the enemy. In practice, however, Bush and Bush followers simply dump all inconvenient arguments into the category of "aid and comfort"; they're concerned with political fallout, not the effect on the enemy.

An example of this is Bush's recent speech where he mentions three kinds of "irresponsible" arguments: saying we went to war for oil, saying we went to war for Israel, and saying we went to war because we were misled by the Bush administration. He's lumping two "fringe" arguments (oil/Israel) with an argument that the majority of Americans now believe, mostly because it's true (the Bush administration misled us). He's also not explaining why it would give aid and comfort to the enemy to say we were misled into war (the enemy assumes we're all evil liars who want to kill them; they don't care about our internal arguments over the motives of the war). In other words, Bush is playing politics by implausibly accusing his opponents of playing into the hands of the enemy; standard practice for him, but not really worth taking seriously.
1.11.2006 4:00pm
AF:
Ashcroft's comments aren't McCarthyism; in a sense, they're worse. McCarthy was accusing people of actually conspiring to overthrow the government. Ashcroft was arguing that simply criticizing the government is tantamount to conspiring with the enemy. McCarthy's obvious excesses aside, his central claim lay on much firmer ground than Ashcroft's.
1.11.2006 4:03pm
M.A. (mail):
Actually, I don't think Ashcroft's comments were McCarthyistic, though they were poorly phrased. I took it that he was saying that people who make false statements about "lost liberty" are helping the enemy. I don't think he was saying that talking about something that actually happened would be helping the enemy. (I admit I cut Ashcroft some slack because he was one of the few Bush appointees who doesn't seem to have been a complete lickspittle for Bush/Cheney.) Maybe I'm wrong and he did try to brand specific, legitimate accusations as helping the enemy, but I don't recall it that way.

Whereas Bush's recent comments attempt to intimidate people from mentioning things that did happen (the manipulations of intelligence, the wiretapping program), which is closer to McCarthyism: attempting to shut down all debate by branding truthful comments and legitimate accusations as treacherous.
1.11.2006 4:09pm
Mr L:
Ashcroft was arguing that simply criticizing the government is tantamount to conspiring with the enemy.

Er, no. He argued that scaring people with 'phantoms of lost liberty' and confusing issues in the middle of a war effectively aided the terrorists, which of course it does.

There's a qualifier, there, and I think it's accurate -- there were a lot of people throwing around baseless accusations of curtailed civil liberties at the time, and it made honest discussion (and enforcement of useful provisions) difficult. Remember all that screaming about library records, even though the provision had never been used? Or attributing 'abusable' federal powers to the Patriot Act, when they were actually put in place decades ago and had been used without a peep for about as long? Or how we ended up searching gran'ma for bombs to avoid 'profiling'?

If objecting to that was 'worse than McCarthyism', then I guess you're going to have to fault anyone who objects to baseless accusations fouling the debate. In light of that, I suppose you won't mind me calling you a terrorist for disagreeing with my point of view.

Terrorist.
1.11.2006 4:19pm
AF:
You lost me at the end there Mr. L. In all sincerity, it appears that you are intentionally parodying your own argument.

Regardless of whether it's intentional or not, it makes my point: it's one thing to disagree with someone's point of view, another to call them a terrorist.

Perhaps you're saying that calling someone a McCarthyist is similar to calling someone a terrorist? But there is a key difference: usually you call someone a terrorist to stifle dissent, whereas you call someone a McCarthyist when <i>they</i> are stifling dissent.
1.11.2006 4:31pm
Mystery Meat:
"Fredo, you're my older brother, and I love you. But don't ever take sides with anyone against the Family again. Ever."

Michael Corleone in The Godfather.
1.11.2006 4:44pm
Justin (mail):
"In 2004 Democrats sincerely believed that reelecting George W. Bush would endanger America, because they thought that Bush's national security policy was dangerous."

There seems to be no logical argument that exists to defend the theory being presented which would, once one accepts that (as I do) and argues that this cost is greater than the costs of criticizing the government (which I do), not only permit me to argue those facts that I believe correct to criticize the government, but to lie and defraud the public in order to pressure Bush to stop hurting America REGARDLESS OF THE MERITS.

I don't think Democrats should do that...indeed, I find the entire line of reasoning completely missing the point. Democracy only works through a constructive discussion of policy, and the use of boogymen to prevent those discussions, or even simply raise the stakes of being wrong on one side without the other, naturally causes more harm than good in all but the most extreme of circumstances..."enboldening the enemy" or letting the enemy know that we're doing some things without a secret warrant than with one seems to be way below that line. Outing a CIA agent seems to be closer to that line, and publishing nuclear weapons research seems to be obviously over the line.

It should also be pointed out that if one can ask "If Ashcroft, Clinton, Orwell, and Churchill were wrong in their estimates of the harm that their adversaries' arguments were causing [the citizens of their country]"

one could equally ask "If Stalin, Hitler, Musselini, Pol Pot, and Mao were wrong in their estimates of the harm that their adversaries' arguments were causing [the citizens of their country]"

Democracy, even in Israel and India today, where it is most threatened, has ALWAYS managed to suecceed with the full force of political dissent. It has, in Germany, in Italy, in Spain, and throughout Africa and the Middle East, has always failed when requiring particularly stinging criticism of the executive to be out of bounds. Given the subjectiveness of "merits" and even "truth" in the above post (not to mention the chilling effect of criticism, particularly when the truth examination has a strict liability standard), the only thing the arguer, intentionally or not, is advocating is dictatorship.
1.11.2006 4:47pm
Thorley Winston (mail) (www):
BTW: here's the full quote from then Attorney General John Ashcroft:

We need honest, reasoned debate and not fear-mongering. To those who pit Americans against immigrants, and citizens against noncitizens; to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists, for they erode our nationality unity and diminish our resolve.


Mr. L appears to be correct in his characterization of what Ashcroft actually said and clearly meant.
1.11.2006 4:55pm
AF:
I'm not clear why anyone thinks Ashcroft's qualifier changes anything. There is little difference between saying, "those who criticize the government are aiding the terrorists" and ""those who criticize the government falsely are aiding the terrorists." Calling them weaklings, fear-mongers, liars, demagogues, or whatever, is fine. But when a government official states that dissent (whether or not it is "fear-mongering") aids the enemy, he is attacking the very legitimacy of dissent, and that is inconsistent with principles of free speech and democracy.
1.11.2006 5:06pm
Eric Muller (www):
I will read Eugene's entire piece, but the excerpt he gives us here, in conflating the meanings of an accusation of helping foreign enemies and an accusation of helping domestic criminals, misses a very important point: when you accuse someone of "aiding" our nation's foreign enemies, you level a charge of disloyalty and borrow the language--and, more importantly, the historical and social meaning--of treason. Such an accusation cuts far deeper; it threatens and menaces far more powerfully.
1.11.2006 5:12pm
Eric Muller (www):
To put a finer point on it: calling someone a traitor for criticizing the government is far likelier to derail reasoned consideration of his criticism than is calling someone an "enabler of crime" (or whatever) for speaking in defense of gun rights.
1.11.2006 5:17pm
Mary Katherine Day-Petrano (mail):
So now we have a thread implying that I am "disloyal to the US government" for exposing the fact a high level architect of NSAs IBM enhanced electronic domestic surveillance system happened to be a pervert who liked giving me Quaaludes and having his way with me when I was 14.
1.11.2006 5:53pm
Mary Katherine Day-Petrano (mail):
For details, see previous comments on previous NSA threads.
1.11.2006 5:55pm
Tom Holsinger (mail):
There is a growing demand that President Bush enforce existing laws on disclosure of classified information and that pertaining to communications intelligence. His failure to act in this regard (IMO he won't act) will have consequences, which IMO will likely include people acting on their own against those they perceive to disloyal.

Lefties and Power At Any Price Democrats do not at all realize that their often reckless rhetoric coupled with apparently criminal disloyalty by some may have such consequences.

Tough for them if it does. American history shows repeated examples of the federal government being forced to take official action against those perceived as disloyal to forestall private action action against them. Usually but not always after the private action has commenced. Sometimes the private action was necessary (1861) and sometimes it wasn't (1942 - the Hearst newspaper chain was whipping up mob violence against Japanese &Nisei on the West Coast - my mother told me about that).

We seem on track to a repetition of this. Like I said, tough for the disloyal. Public tolerance ceased when their criminal acts started, and they'll learn that the hard way.

President Bush too will learn the hard way how important it is that there be a public perception that the laws are being enforced.
1.11.2006 6:18pm
byomtov (mail):
Remember all that screaming about library records, even though the provision had never been used?

Yes. I remember it, and I think the screaming was justified. That the provision was not used, if in fact it was not, has absolutely nothing to do with the question of whether or not it should be in place.

Or are you suggesting we need no civil liberty protections because we can rely on the good will of individual officials to prevent abuses of power?
1.11.2006 6:23pm
Eugene Volokh (www):
AF: The relevant part of the quote is "We can't let the gun lobby turn America into a safehouse for terrorists."

Eric: Clinton wasn't just suggesting "the gun lobby" was helping "criminals," but rather that it was helping "terrorists" -- indeed, domestic rebels rather than foreign enemies. Timothy McVeigh wasn't just a garden-variety thug. Helping either domestic rebels or foreign enemies is equally treasonous if done intentionally (and presumably through more than just speech), and equally harmful and potentially reprehensible (or perhaps not reprehensible, if there's a good reason for speaking notwithstanding the risk of harm) if just done knowingly or negligently.
1.11.2006 6:48pm
AF:
Professor Volokh:

Right, but, in Clinton's view, the gun lobby would do so by blocking gun-control legislation -- not by speaking out about gun rights. It seems that you are conflating criticisms that are levied at policies advocated, and criticisms that are levied at advocacy itself. I think that is the crucial distinction: the former is usually legitimate, the latter is usually not. Other than the admittedly excessive word "terrorist," I don't see how Clinton's comment is structurally different from saying "we can't let opponents of school vouchers ruin our children's chance at a good education."

It appears from the excerpt that Clinton's and Orwell's comments are in the first category, while Ashcroft's and Churchill's are in the second.

I'm not concerned if Bush says that a Democratic senator is aiding terrorists by voting against military appropriations. I am very concerned if he says that the senator is aiding terrorists by criticizing the Bush administration's treatment of detainees.
1.11.2006 7:11pm
AF:
Professor Volokh:

Right, but, in Clinton's view, the gun lobby would do so by blocking gun-control legislation -- not by speaking out about gun rights. It seems that you are conflating criticisms that are levied at policies advocated, and criticisms that are levied at advocacy itself. I think that is the crucial distinction: the former is usually legitimate, the latter is usually not. Other than the admittedly excessive word "terrorist," I don't see how Clinton's comment is structurally different from saying "we can't let opponents of school vouchers ruin our children's chance at a good education."
1.11.2006 7:12pm
AF:
Or more precisely, "we can't let the liberals make our streets a safe haven for criminals."
1.11.2006 7:20pm
Eugene Volokh (www):
AF: That's precisely the way the "gun lobby" blocks gun control legislation — by speaking out about gun rights, persuading its members to pressure their representatives on the subject, and speaking to the representatives directly on the subject. This is no different than how many of the Administration's critics try to block various government actions. (In fact, Ashcroft was speaking most directly to Sen. Leahy and his fellow Senators, who actually can block government action by doing more than speaking — they can themselves cast votes in the Senate against it, which the "gun lobby" can't do. But I agree that Ashcroft was also speaking indirectly to voters and opinion leaders who might agree with Sen. Leahy; they are no differently situated than the "gun lobby," in that both act by speaking.)
1.11.2006 7:32pm
AF:
I'll read the article before commenting more. But I find it surprising that you don't see a relevant distinction between criticizing the policies people advocate, and criticizing people for the very act of advocacy -- between, for example, your first Clinton quote and your second.
1.11.2006 7:41pm
Eric Muller (www):
Eugene, you say: "Helping either domestic rebels or foreign enemies is equally treasonous if done intentionally (and presumably through more than just speech), and equally harmful and potentially reprehensible (or perhaps not reprehensible, if there's a good reason for speaking notwithstanding the risk of harm) if just done knowingly or negligently."

This is an accurate statement of legal principles.

But in my view what it's missing is about 230 years' worth of context.

The charge of affiliation with foreign influence has always had a uniquely pernicious power (and, indeed, the fact of that affiliation, in cases where it was true) in American history. Think of Benedict Arnold or Alger Hiss, and then think of Robert E. Lee. (I refer here to how they are remembered, not to whether they are in fact comparable.) I continue to think the excerpt you've posted elides a very important difference between an accusation of supporting foreign powers and an accusation of supporting domestic critics (even violent ones).
1.11.2006 8:20pm
Mary Katherine Day-Petrano (mail):
Tom Holsinger, I think what you're saying is:

(1) you believe I am breaking the law by exposing Kenneth Gordon Day's criminal Quaalude enhanced sexual exploitation of a minor while he was employed by IBM working on NSAs electronic surveillance algorythms; and

(2) the feds are going to come and get me before you and the other vigilantes do.

Now lets talk federal law. I perceive what you are inciting to be a threat directly prohibited by 42 U.S.C. Sec. 12203, particularly in light of my having exercised a remedy under the ADA in my federal cases, including U.S. Sup. Ct. Docket No. 05-7771, and blogged about it.
1.11.2006 11:18pm
Katherine (mail):
By calling it "McCarthyism" they ARE implicitly arguing that the charges are false and implausible. And they're usually right. I mean, all that bullshit over the summer about "Senator Durbin's words being broadcast over al-Jazeera"--these are usually very stupid charges. It is NOT realistic to describe criticism as significant harming the war effort by "emboldening the enemies." I mean, what does this mean:

"Similarly, criticisms of the administration's actions may well erode national unity, diminish national resolve, give ammunition to our enemies, and aid terrorists. This is especially true when the criticisms come from legislative leaders....Enemies who see our political leaders divided on the war on terror may well be em-boldened, and foreign neutrals may see us as less likely to prevail than if we seemed united."

Do you have anything to back that up beyond a series of "may wells"? What exactly does it mean to "embolden the enemy"?

The truth/falsehood of the claim is what's central, and it's the problem with this excerpt: you treat arguments that the actions/omissions of the party in power harm the war effort and arguments/criticisms of the party out of power harm the war effort as equally plausible. As a general rule, they're not equally plausible.
1.11.2006 11:25pm
Apodaca:
Dear Invisible Hand of the Moderators,

I don't contend that MKD-P is helping the enemy, intentionally or otherwise. However, I do contend that she is not merely not helping, but actually impairing the quality of the discussion here. Please ponder the exercise of the authority reserved in your own advice on the comments page:
[S]ometimes the leader has to deal with cranks who sour the conversation more than they enliven it.

Naturally, there's always a risk that this discretion will be used erroneously, no matter how well-intentioned the editor. But discussion groups (especially on the Internet, but also off it) generally need an editor who'll occasionally make such judgments.
And just to be clear, I have no love for Tom Holsinger (as even a cursory review of our prior interactions will demonstrate), but -- despite my personal revulsion at many of his opinions -- I think he belongs in the conversation here. MKD-P does not, IMHO, nor does her bizarre invective aimed at Tom.
1.11.2006 11:35pm
Mary Katherine Day-Petrano (mail):
In opening, I have a JD/MBA degree from the Univ. of San Francisco, May 1990, and passed the July 1997 Calif. Bar Examination. I also have a Supreme Court Docketed Petition, No. 05-7771 to which I directed fioled Jan. 06, 2006 a motion to consolidate my cases based on facts that provide reasonable belief my husband and I have been subject to unlawful surveillance by the President's NSA program and 'use of force' against us by:

(1) an event involving two individuals attempting to board our vessel home, S/V Canandaigua, at appx. 3 am, Sept. 28-29, 2003, during the pendency of the case, now Docketed 05-7771, about which a City of Clearwater police report exists, for which this event was also called a "commando raid" in an Answer filed in Petranos v. Hutto, M.D.Fla. on PACER by one Theron Hutto, a Coast Guard E-9;

(2) Theron Hutto, the Coast Guard E-9, testified as key witness in Petranos v. The Vessel Mistress, M.D.Fla. on PACER for which the Hon. James D. Whittemore recognized Mr. Hutto committed perjury in open court before the Hon. Magistrate Elizabeth A. Jenkins on Jan. 18, 2005;

(3) Theron Hutto's perjury was reported to the Tampa FBI, but to this date it appears Mr. Hutto/E-9 continues to walk scot free;

(4) Theron Hutto.E-9 admitted in his Answer in Petranos v. Hutto, supra, he committed perjury to protect the vessel and the owners of the vessel, and he told the attorney about it;

(5) Theron Hutto claims to be the last one to tie the Vessel Mistress for Hurricane Jeanne during the pendency of Docket No. 05-7771 when it was in the lower court, with 4-5 lines, one of which was breaking in three places which is admitted into evidence in the federal court, placing the vessel in marine peril of breaking loose and destroying the S/V Canandaigua with MKD-P and her husband aboard at the height of the Hurricane;

(6) Theron Hutto threatened MKD-P and her husband (a licensed attorney) that the Vessel Mistress was surveilling them;

(7) MKD-P's husband is a civil rights attorney licensed licensed in the M.D. Fla., FBN 624586.

In sum there is no "invective," but when the Volokh experienced its "hardware failure" causing it go offline for appx. 1 1/2 days, that event occurred shortly after Tom Holsinger attacked MKD-P's posting about Petranos v. The Vessel Mistress, supra, with a case number, and he was aided by MaritimeLawyer, in light of the fact MKD-P has standing as an aggrieved part to challenge the very discussion under way here and on other NSA threads, it would appear MKD-P DOES beoing in this discussion, it appears Apodaca advocates censorship, and has cast an accusation that existing facts of which she has not investigated are "bizzare." In any federal court, such speculation would violate Fed. R. Civ. P., 11.
1.12.2006 12:38am
Mary Katherine Day-Petrano (mail):
Another thing, Apodaca, isn't it criminalized now since last Thurs. Presidential signing to "annoy" another person under an anonymous blog name without posting under your real name????
1.12.2006 12:50am
Tom Holsinger (mail):
Apodaca,

I doubt the moderators will act on MKDP until she starts trying to sell us things. A UseNet term applies here - Do Not Feed The Energy Creature, aka Ignore Her. At least this blog's software puts the name of the poster at the top of a post.

My point in this discussion is that events made it obsolete before it got started. We're no longer looking at mere speech - criminal acts and, more pertinent to this blog, violations of judicial ethics have occurred.

Washington Post story on January 5, 2006, page A2:
"Some judges who spoke on the condition of anonymity yesterday said they want to know whether warrants they signed were tainted by the NSA program. Depending on the answers, the judges said they could demand some proof that wiretap applications were not improperly obtained. Defense attorneys could have a valid argument to suppress evidence against their clients, some judges said, if information about them was gained through warrantless eavesdropping that was not revealed to the defense."

Canon 3(A)(6) of the Federal Canons of Judicial Ethics states:
"A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education."

Andrew McCarthy of the National Review said of this:
"These are the judges of the FISA court. Of the hundreds of federal judges in the United States, there are, as already noted, less than a dozen specially chosen for these weighty responsibilities. They are selected largely because they are thought to be of unquestionable rectitude, particularly when it comes to things like leaking to the press.

To find federal FISA court judges leaking to the Washington Post about an upcoming closed meeting with administration officials about the highest classified matters of national security in the middle of a war is simply shocking.

Even more mind-blowing, though, is to find them discussing what they see as the merits of the issue. Without having heard any facts or taken any submissions on the governing law — and in the cowardice of anonymity — here they are speculating for the media about what positions they might take depending on how the administration answers their questions. Here they are preliminarily weighing in on the validity of defense claims in cases where FISA evidence was introduced. This is an inexplicable judicial misconduct.

If a judge pulled a stunt like this in a run-of-the-mill criminal case, it would be grounds for his removal. To have FISA court judges doing it is astounding."

This is judges. Then throw in apparent criminal violations by the New York Times and its sources in revealing too much about communications intelligence.

IMO these matters take us past the issue of speech and into overt misconduct. There are already calls for President Bush to enforce the law concerning these transgressions.

Those will get stronger and IMO Bush will do nothing. He won't obstruct routine action by the Justice Department, etc., but IMO nothing prosecutorial which requires a decision by President Bush, or action by him, will happen.

THEN I see trouble coming. Big trouble, and it won't concern speech.

We'll all get a rude lesson in how important it is that there be a public perception that the laws are being enforced.
1.12.2006 2:53am
Mary Katherine Day-Petrano (mail):
"A UseNet term applies here - Do Not Feed The Energy Creature, aka Ignore Her. At least this blog's software puts the name of the poster at the top of a post." Unlike Apodaca, I never hid my identity behind my blog name.

Moreover, regarding the old saying law professors know theory, but litigators are not afraid to apply the legal theory (the rules) to the facts, it is quite fascinating how Tom H. substitutes logically fallacious statements for logical argument when confronted with true facts in a real case/controversy of two people with standing on point to the debate going on over the NSA surveillance and how the government and its supporters perceive critics.

"Do Not Feed The Energy Creature," well I suppose I have been called a lot worse, but I cannot help point out the dangers of the vigilantiasm to which Tom. H. refers, See Howard Bashan, How Appealing:

"Cruel and unusual punishment? The Minneapolis Star Tribune today contains an article headlined "'Impaler' sinks his teeth into governor's race; Self-styled 'vampyre' Jonathon Sharkey is running for governor on a platform that includes impaling terrorists."
Posted at 11:54 AM by Howard Bashman" Jan. 12, 2006 thread.

Minnesota gubernatorial and 2008 Presidential alternative candidate, "Jonathon (The Impaler) Sharkey," pledges to "execute -- by impalement in front of the State Capitol -- terrorists, rapists, drug dealers, child abusers, repeat drunken drivers and anybody who preys on the elderly." See, link on Bashman to the story.

This is the shoot first, ask later mentality so evident in the prevailing mindset of the supporters of the NSA spying -- i.e., collateral damage is irrelevant.
1.12.2006 1:00pm
CJColucci (mail):
In an attempt to get back to something like the topic, I read the article. Not much to disagree with because there's not much there. Government officials have a legal right to flap their gums irresponsibly, even for the specific purposes of intimidating their critics, as long as they don't actually do anything. Private actors can do what they damn please. First Amendment 101.
For this you can get published in a leading law review?
1.12.2006 3:48pm
Tom Holsinger (mail):
CJ Colucci,

Hairsplitting differences exist, and that is what law review articles are for.

It would be nice if dissent on the war only involved speech. The problem is that has recently taken the form of criminal and judicial misconduct, so the subject has been Overtaken By Events (OBE).

I see a reaction to the misconduct coming, and that it will happen faster, harder and more divisively than need be due to President Bush's expected failure to enforce the law in such matters.
1.12.2006 6:10pm