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Kerr on Lithwick's Lameness:

Dahlia Lithwick warns that the Bush Administration wants to prosecute "thought crimes," VC contributor Orin Kerr is unimpressed.

Friedrich Foresight (mail):
Dammit, that kerr-sed hyperlink doesn't work. And I'm curious to read Orin's takedown of the latest Neolithwick ramble.
7.17.2006 10:04pm
Thorley Winston (mail) (www):
Professor Kerr's site appears to be down, what's the general thesis of his argument?
7.17.2006 10:04pm
18 USC 1030 (mail):
Prof. Kerr points out the full quote--and the background to it. Thus pointing out that Lithwick is basing her argument on a less than perfect use of a quote by AG Gonzalez.
7.17.2006 10:19pm
ox (mail):
Kerr seems to have it in for Lithwick these days. Maybe because she has Kennedy's number, or because she's figured out how to rankle conservatives? But whatever the case, there's a lot of fire directed in her direction. A liberal could be forgiven for thinking she's doing something right.
7.17.2006 11:49pm
mh (mail):
Ox, given the fire directed at Bush over the past 5+ years, I guess a conservative could be forgiven for thinking that liberals must "have it in for" him and that he must be doing something right. Forgive the snarkiness, but you didn't even bother to address any of Kerr's points (which I myself haven't even read since I can't access his site, but I'm assuming that Orin Kerr does indeed bother to make some points). In short, anyone could say that ABC is often criticized by XYZ, but does it follow that XYZ has it in for ABC and ABC must be doing something right?

The KKK is often criticized by, well, pretty much everyone, so everyone has it in for the KKK and the KKK must be doing something right?
7.18.2006 12:08am
Spanky:
I, too, was impressed with Lithwick's lameness. She's a great writer but a legal commentator of highly variable quality - I take it she's fronting for someone else's legal research, and that someone else changes from time to time.

What are the odd she would have writtent his column 10 years ago, when the Justice Department was using these techniques to take down right-wing militia groups?
7.18.2006 12:24am
ox (mail):
Mh -- I haven't read Kerr's criticism because his blog is down. But even if he's got a point (and I think his claim in the last round of criticism was rather weak), it's interesting that Lithwick is attracting so much attention from VC bloggers, and Kerr especially. Why is that? There are plenty of other commentators out there, saying far more outrageous things. My suggestion above is that Lithwick rankles conservatives -- and perhaps in ways that others don't. Look, if you think someone who criticizes you isn't worth responding to, then you ignore them. But Kerr isn't ignoring Lithwick. He's trying to debunk her. (What else do you infer from calling someone "lame"?)And again, why? Probably because she's got under the skin of jurisprudential conservatives. She's figured out a rhetorical strategy--charming, witty, clever, but also subversive and stinging--that they're not quite sure how to respond to. Hence the rankle.

Your analogies to Bush and the KKK fail here because, well, Lithwick is a political writer -- not a major political figure or a terrorist organization. Of course one can criticize her for bad arguments. I'm just noting that among the liberal (or even moderates) out there, she's starting to come in for special scrutiny at this blog. And I don't think that's an accident. Lest a liberal legal writer get too popular, or overshadow academics writing about the Supreme Court ... that wouldn't be good for business ...
7.18.2006 12:58am
Lev:
Minority Report
The United States inches ever closer to criminalizing bad thoughts.
By Dahlia Lithwick


I wonder if she ever wrote anything similar about "hate crime" proposals.
7.18.2006 1:07am
mh (mail):
Ox:

You write that "[y]our analogies to Bush and the KKK fail here because, well, Lithwick is a political writer -- not a major political figure or a terrorist organization." Sorry, but that ducks the point. You argued that Lithwick must be "doing something right" because she's being attacked by Kerr. How, again, is that at all different from saying that Bush must be doing something right since he's being attacked so vociferously by the Left? Yes, Bush is "a major political figure" and Lithwick "is a political writer," but how does that in any way alter the analysis? Did I miss something?

You also write, "Look, if you think someone who criticizes you isn't worth responding to, then you ignore them." Is that why the Left ignores Ann Coulter? Judging by the Left's condemnation (rightly, as far as I'm concerned) of Ann Coulter, the Left thinks that Coulter is worth responding to? Again, that's your logic.

In fact, the reality is that even if one does not personally believe that another person is worth responding to, there will be a response if the "unworthy" person garners enough attention. As a Slate writer, Lithwick qualifies, and therefore your arguments fail.
7.18.2006 1:45am
OrinKerr:
Orin Kerr is clearly untrustworthy. No one should pay any attention to the "merits" of his so-called "arguments."

(Seriously, though, sorry my site was down -- I don't know why it was, but it's back up. And Ox, I would be delighted to respond to you after you read my post.)
7.18.2006 4:14am
ox (mail):
Mh -- I didn't write that Lithwick "must" be doing something right. I wrote that liberals *could be forgiven* for thinking so. That's not yet to defend her substantive positions, only to note that they are generating some heat from thoughtful conservatives. I said above that, if she's making bad arguments, she can be rightly criticized for that. But I also said that she rankles conservaties because, even though she's not an academic, former supreme court clerk, etc., she's developed a writing style and a political perspective that makes criticism of conservative positions compelling -- even if not to the readers of this blog or Kerr's (at least judging by the moderated comments there). But maybe Mh is right, and this is just an example of policing Slate -- which provides VC with a lot of fodder. And nothing especially wrong with that.

As to Kerr's blogpost, I don't think Lithwick misrepresents Gonzales' claim (and it is quoted in full in an article she links to in her column). The AG says it's dangerous to make case-by-case evaluations of terrorist groups. Now why would you say that? To provide cover for the rather weak arrest DOJ has just made? Or to show that the government is erring on the side of caution? Perhaps, but Lithwick's point is that given the hype over the arrest, and the substance (or lack thereof) of the indictment, there's reason to wonder about the kinds of distinctions the government is drawing (or is failing to draw -- hence her line about "no nuance, no caution"). Kerr doesn't discuss the rest of Lithwick's column, which says that the "truth lies in between" "[a] government that claims to be fighting a new type of crime" and "civil libertarians who claim that we are a short hop from the science fiction world of Minority Report." Lithwick discusses some recent work on the law of conspiracy and (as Kerr notes) draws some fairly reasonable conclusions about applying that law. In doing so, however, she also voices a concern shared by many that this Administration goes too far, because it thinks that "since 9/11 happened due to government inaction, any and all government action should be welcome." The hype over the Miami arrests was out of proportion to the threat posed, and Lithwick wonders why the Administration acted as it did. But not liking her explanation, and even disagreeing with it, doesn't make it "lame." That conclusion comes from someplace else -- the rankle.
7.18.2006 11:35am
OrinKerr:
Ox,

You seem quite rankled by my post, so let's refocus on the merits. Lithwick's claim is that these indictments signal a "new theory of criminal deterrence by CAT scan, the proposition that you can arrest a man solely for what's on his mind." Do you agree with that claim? If so, what evidence would you assert in support of it?
7.18.2006 12:27pm
Kurt2 (mail):
Why would conservatives be rankled by Lithwick? If I were conservative, I'd *love* to have the debate framed this way - between people who want to arrest those who meet with undercover agents to purchase items for blowing up tunnels and buildings, and those who think this is just a "thought crime". And if the other side wanted to compare these guys in Miami to high school kids doodling in their notebooks, so much the better.
7.18.2006 1:14pm
ox (mail):
Orin,

I think the claim is exaggerated. But I also think your criticism ignores most of Lithwick's column, which concerns the balance between applying criminal conspiracy laws and the protection of civil liberties. She asks three important questions: (1) should it matter if the object of the conspiracy is remote (or impossible), (2) should it matter that the purported conspirators haven't yet acquired material, and (3) "should we worry about these details?" by which I take her to mean, should the government make nuanced determinations about how far a conspiracy has progressed? Her clear implication is that the government didn't do a good of it here and let its prosecution focus more on what the defendants believed than on their over acts. One could disagree with her assessment of the Miami indictment (and also with how far to stretch conspiracy law), but the underlying questions about remoteness are important. Do you think she's wrong to raise them?
7.18.2006 1:26pm
David M. Nieporent (www):
As to Kerr's blogpost, I don't think Lithwick misrepresents Gonzales' claim (and it is quoted in full in an article she links to in her column). The AG says it's dangerous to make case-by-case evaluations of terrorist groups. Now why would you say that?
But (as Orin points out) she leaves out the very next sentence, which says the opposite of what she claims, and what you now seem to be claiming:
We look at the facts in every particular case. And we felt that the combination of the planning and the overt acts taken were sufficient to support this prosecution.''
He's saying that one shouldn't decide that some terrorist groups aren't dangerous. He isn't saying that one shouldn't make a case-by-case evaluation of the situation. He says clearly that one should.

A better question is why one would focus on his words at a press conference rather than the actual facts of the case. If you or Lithwick think the government should have let this group slide, then say so. If you think they should have been charged with lesser crimes than they were charged with, then say so. But don't attack statements at a press conference.

And don't cite this situation as an example of the alleged problem of prosecuting "thought crimes" if, in fact, it isn't an example of prosecuting thought crimes.
7.18.2006 3:09pm
LeftLeaningVolokhReader:
Now now... If I can recall, you've had your share of "lame" moments (ie Jay-Z). VC is a good site when it gets down to the merits, but namecalling/mockery/political hackery just doesn't fit this site's academic oriented mantra.
7.18.2006 3:33pm
Duncan Frissell (mail):
What's the current libertarian legal theory thinking on 'conspiracy'?

Generally I would have thought that libertarians (I know Orin isn't) would favor the Common Law attitude towards 'conspiracy' in which it mostly didn't exist outside of specialized offenses.
7.18.2006 4:26pm
OrinKerr:
Ox,

Lithwick would be absolutely justified in raising these issues as concerns. I certainly share these concerns myself. Indeed, I teach these concerns every fall semester: they are the standard arguments that every criminal law teacher raises when teaching conspiracy law to first-year law students. Conspiracy law is a troubling area, as it ratchets back the trigger of criminal liability quite far; the tremendous power granted to the goverment by conspiracy law (and particularly federal conspiracy law, with the Pinkerton doctrine) has to be excercised with tremendous care.

The difficulty is that Lithwick did not merely raise these issues as her concerns. Rather, she stated that the worst of her concerns had in fact come to fruition. Specifically, she claims that the Administration has in fact embraced a "new theory of criminal deterrence by CAT scan, the proposition that you can arrest a man solely for what's on his mind." You charitably describe this statement as an "exagerration," but I think a more accurate description would be that it is false.
7.18.2006 4:46pm
mh (mail):
Ox,

You're right, you didn't write that Lithwick "must" be doing something right, but rather that liberals "could be forgiven for thinking so." My apologies. Nonetheless, your implication was clear, namely that one should draw a favorable conclusion from the level of criticism leveled at Lithwick (that's why these liberals "could be forgiven"). You argued that "Lithwick is a political writer -- not a major political figure or a terrorist organization," but why, I again ask, should criticism of Lithwick the "political writer" be construed any differently than criticism of Bush? That is, Lithwick writes a political/law column, but why does it mean that anyone "has it in" for her if someone disagrees with her? Why don't you conclude that Lithwick has it in for Bush, you know, based solely upon the frequency with which she attacks Bush?
7.19.2006 2:54am