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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):

  1. Post Script on Greenwald:
  2. Does Civility Make You an Apologist For Lawlessness? One More Round With Glenn Greenwald:
  3. Greenwald Responds:
Casper the Friendly Guest (mail):
***cueing Whitney Houston***

Orin,

I probably disagree with you on about 75-80% of the issues that matter to me, but I would much rather have you in a position of power than the sort of knee-jerk and dismissive libs that I do agree with on almost all the issues.

Do you understand how rare it is these days to find someone (nevermind a blogger) who is willing to have an informed, reasoned, substantive discussion about political issues in this day and age? That is what makes you so threatening to those who either cannot or will not engage in honest debate, not the underlying policies you are endorsing.
11.8.2008 3:16pm
EIDE_Interface (mail):
GG is a a left-wing hack and professional sock-puppet. Why are you even discussing him?
11.8.2008 3:20pm
Light Hearted (mail):
I think, Professor Kerr, you state your position well. But do you not think Greenwald has SOME point? Perhaps you and he merely disagree as to where to draw the line, but it's generally considered an epistemological truism that before you begin an argument, you must agree the opposing position is at least epistemically credible, even if wrong. Otherwise you'd spend your day reasonably dispelling bizarre and outrageous claims no one took seriously in the first place.

Would you patiently argue against a government policy that said not only could non-citizens be legitimately tortured by American personnel, but so could their children and parents? How about if the Bush Doctrine included not merely torture but cannibalism. "Continue to hold your tongue and we'll boil it."?
11.8.2008 3:21pm
corneille1640 (mail):
What Light Hearted said. Ditto.
11.8.2008 3:23pm
zippypinhead:
Professor Kerr:

Once again you are right, and Greenwald is wrong. Beginning to notice a trend here, by any chance?

Look, the guy's a Troll and he's clearly enjoying tweaking you, especially since he's getting you to react every time he pokes at you. And in a happy coincidence (for him), it drives more traffic to his pages at Salon. At this point, Greenwald is continuing to spew against you mainly because he's getting a reaction. His position is not only indefensible, it's positively bizarre, at least for somebody who calls himself a grownup.

Basically, you're falling for the same trap that every second-grader is warned about: don't get upset and react to the teasing from the class bully, it will only egg him on.

If everyone would just ignore Greenwald's flame, that would be the best punishment.

The judges have ruled: You win. Greenwald loses. Now let's move on.
11.8.2008 3:23pm
Dan M.:
Well, I think that the crazies have their place. I don't expect a lot of people to write letters to their Congressmen with long-winded arguments about the merits of some legislation. I expect them to write and call and say "DON'T SUPPORT THIS LEGISLATION BECAUSE IT IS UNAMERICAN!!!!!!" and for the opposite crazies to say "SUPPORT THIS LEGISLATION OR THE TERRORISTS WIN!!!!!!"

How much do you think they listen to the reasonable calls from constituents? They probably just think "Well, this guy sounds calm and reasonable, surely I can ultimately justify to voters like him whatever position I eventually take."
11.8.2008 3:29pm
Vermando (mail) (www):
What a bastard that guy is. Even how he lumps everyone who disagreed with his characterization of you as "friends and admirers" - I do not think I am either. It is as if, in both the original accusation and the defenses, he is unable to conceive of a world in which people take arguments seriously, evaluate them, and then offer their opinion on them. What is that dude's problem?
11.8.2008 3:30pm
zippypinhead:
Would you patiently argue against a government policy that said not only could non-citizens be legitimately tortured by American personnel, but so could their children and parents? How about if the Bush Doctrine included not merely torture but cannibalism. "Continue to hold your tongue and we'll boil it."?
Yes. We are a society of laws, not temper tantrums. You most certainly would patiently and rationally advocate against bad policies if you wanted to effectively have an influence on the policies through lawful channels. Flame-wars, hissy-fits and blatant sock-puppetry won't change minds, and therefore won't change policy.

Yet another basic principle they usually try to teach in elementary school. But perhaps Greenwald was home-schooled by hyenas, or whatever sub-species of humanity likes boiled tongue. The Scottish, perhaps?
11.8.2008 3:38pm
Light Hearted (mail):
Vermando,

I would never suggest that Professor Kerr doesn't take arguments seriously, as a general rule. I have noticed, however, and I'm sure others have as well, he DOES have a distressing tendency, when discussing the benefits of one form of constitutional interpretation over another, to keep assuming his opponents prefer a different construction merely or solely because of their policy preferences.
11.8.2008 3:38pm
R Nebblesworth:
GG was a lot better before his blog was picked up by Salon, and before his book deals. In fact his older blogspot posts sounded a lot like OK's in terms of tone (though not substance). It seems like he has found success in shrill-ery (sp?), unfortunately.
11.8.2008 3:38pm
Oren:
This back-and-forth has lowered my estimation of Greenwald considerably.
11.8.2008 3:40pm
OrinKerr:
Lighthearted,

If your point is that there are some positions so absurd that no one could agree with them, then that is of course true. But I wouldn't blog about those issues; if the argument is absurd, there is no need to blog on it and I wouldn't waste my time with it. I only blog about issues when there is a colorable and interesting set of legal issues on which people in good faith disagree. The question is what to do in that setting, and I think the answer is to take the arguments seriously and get to the merits of them. In a world of diverse opinion, you can either engage on the merits or try to bully the other side; I guess I'm not a fan of bullies.
11.8.2008 3:42pm
Light Hearted (mail):
Zippypinhead is hard to convince, unable, it seems, to conceive an argument that shouldn't be responded to by reason, and sweet reason alone.

OK (not Orin K, just OK)...how about this: Backed by Yoo, Bush argues that whatever he says is the law of the land, and anyone who disagrees with him will be arrested and held indefinitely.

Granting arguendo that he is serious, do you really think the right thing to do is reasonably argue against the President?
11.8.2008 3:46pm
Steve Lubet (mail):
I agree with you on the merits of this one, Orin, but not all arguments deserve to be taken seriously in every forum. Otherwise, we would end up debating "creation science" every year in biology class.
11.8.2008 3:48pm
zippypinhead:
How much do you think [politicians] listen to the reasonable calls from constituents? They probably just think "Well, this guy sounds calm and reasonable, surely I can ultimately justify to voters like him whatever position I eventually take."
Dan M., ever worked in an elected official's constituent relations operation, or on an agency's responses to public comments in an APA rulemaking proceeding? Yeah, I thought not.

Here's what happens to the crazies who send in your hypothetical "DON'T SUPPORT THIS LEGISLATION BECAUSE IT IS UNAMERICAN!!!!!!" arguments: they get ignored, and at most tabulated as yet another vote "against." The reasonable arguments and analysis pieces are much more likely to spur some thought, and get responded to on the merits. Sometimes even without the commenter also including a wad of small, unmarked bills (preferably in a freezer-safe bag) in the envelope.

Washington is a strange place. Those who speak softly, rationally, and persuasively are sometimes heard loudest of all when it comes to policy deliberations...
11.8.2008 3:50pm
Light Hearted (mail):
Prof. Kerr: Your view above is eminently reasonable, and I would not argue against it. But it does, unless I'm missing something, simply come down to your drawing the "reasonable" line differently than Greenwald (who, BTW, I do not know, do not read, and therefore of course do not support).
11.8.2008 3:50pm
Rod Blaine (mail):
An interpretation put forward by a two-term administration, by high-powered DoJ lawyers, and by numerous academics can't be dismissed as "absurd" in the same way as "the moon landings were faked" crowd. It may well be wrong and evil - GGW, as a good liberal, is probably uncomfortable using such judgmental words, so he sets the threshold of "absurdity" high enough to avoid making that judgment - but when your own governing party, supported by 46-51% of those citizens who vote, is making that argument, it doesn't cut it just to roll your eyes and complain in a Sideshow Bob voice that you are surrounded by boobs and yahoos who aren't worth debating.

In any case, I strongly suspect that GGW's, ah, enthusiasm for constitutional checks on executive power may soon undergo some, ah, evolution in the cause of living constitutionalism. Watch this space.
11.8.2008 3:55pm
Oren:

I only blog about issues when there is a colorable and interesting set of legal issues on which people in good faith disagree.

And therein lies the problem. You argue as if the arguments are put forth in good faith, which is a good policy because it concentrates on the important issues. Thus, we end up with a reasoned legal analysis on the merits.

On the other hand, Glen is correct (despite being an ass) that in some of those issues (the OLC memos authored by Yoo), the legal arguments being debated were put forth in bad faith based on intellectually dishonest interpretations of existing statutory law. Where he errs is in reading your assumption of good faith as a concession of good faith.

Perhaps you could help to bridge the gap (despite his apparent unworthiness) by making more explicit the fact that your arguments assume good faith solely for the purpose of argument and that you take no position on the underlying motivations? Certainly I know that (being a long time reader) but it might be lost on outsiders.
11.8.2008 3:57pm
MarkField (mail):

An interpretation put forward by a two-term administration, by high-powered DoJ lawyers, and by numerous academics can't be dismissed as "absurd" in the same way as "the moon landings were faked" crowd.


Yes, yes it can. Light Hearted is right about this.
11.8.2008 4:01pm
David Warner:
Rod Blaine,

"GGW, as a good liberal"

GGW is not a good liberal. Orin Kerr is a good liberal. Gleen is either a poor liberal or a run-of-the-mill leftist, by historical standards.
11.8.2008 4:01pm
zippypinhead:
I failed to add one thought to this point I tried to make earlier: "Washington is a strange place. Those who speak softly, rationally, and persuasively are sometimes heard loudest of all when it comes to policy deliberations..."

...and especially when one decides an outrageous policy that you believe is unconstitutional needs to be challenged legally.

Since, even with Light Hearted over-the-top hypothetical that "Backed by Yoo, Bush argues that whatever he says is the law of the land, and anyone who disagrees with him will be arrested and held indefinitely," the courts are your best friend. Not MSNBC, talk radio or Salon. And certainly not shrill (and easily locked-up) second-tier pundits like Greenwald. In our society and system of government, if the courts can't put a stop this unrealistic hypothetical, then we're back in Hobbes' State of Nature and it's every man for himself. The Revolution Will Not Be Televised.

/sarcasm on>
Hey, speaking of which, now that I think about it, I better run out to the gun shop right now and lay in a few thousand more rounds of .223 ammo. Certainly need to put it on my to-do list before January 20 at the latest.
/sarcasm off>
11.8.2008 4:05pm
David Warner:
OK,

"I only blog about issues when there is a colorable and interesting set of legal issues on which people in good faith disagree."

And Greenwald claims that no people of good faith do. Those who disagree (with him) are a priori not in good faith. It's an argument more tribal than legal, although he does provide a pragmatic fig leaf for his tribe mates and/or those who agree with him on the issue(s) and are perhaps seduced by the promise of the approach he advocates.
11.8.2008 4:06pm
josh:
I think Greenwald's biggest mistake is mixing outrage with argument on the merits. Yes, Bush's policies have been outrageous, but the outrage (justified, I think) doesn't get you anywhere. It reminds me of criminal courtrooms. The most theatrical lawyers, the loudest voices, the overly emotional appeals, almost always seem to get eye-rolls from judges and juries hearing cases. The calm, rational, workmanlike lawyers always seem to have the most success. The steroeotypical, flashy courtroom lawyers are just fodder for TV.

Where Greenwald goes off the rails is claiming that a lawyer (for that's what we are, whether in the law school classroom, on the blog, or in a courtroom) can't be outraged by lawlessness and still approach the issue separate and apart from the outrage. I agree that there are issues that don't merit debate, but if Bush's FISA abuses, torture, etc. fit into that category, why hasn't every Guantanemo prisoner been released? Why hasn't every AT&T record been released?

Arguing that anyone who disagrees with you on these issues is an "apologist" or supports "lawlesness" just fails to recognize the practical realities of our legal system.
11.8.2008 4:07pm
byomtov (mail):
it does, unless I'm missing something, simply come down to your drawing the "reasonable" line differently than Greenwald

This seems right to me. Isn't this particular criticism by Greenwald based on the fact that he draws the line elsewhere than Kerr? He does not think that there is a "colorable and interesting set of legal issues on which people in good faith disagree," so he thinks Kerr is wrong to discuss them seriously.
11.8.2008 4:08pm
OrinKerr:
Oren,

It is true that I presume good faith for the sake of argument, even when I suspect bad faith is afoot (and that taking the argument seriously isn't a sign that I think the argument was made in good faith)) That is true whether the argument I am responding to was made by the Bush Administration or Glenn Greenwald.
11.8.2008 4:12pm
josh:
Having said all that, and this the second time I've tried to raise this in a Greenwald thread, Greenwald did make a point on the merits that I have not seek Prof. Kerr address:

Greenwald, criticizing Kerr's criticism of an opinion by Judge Taylor (? I don't even recall which case any more), pointed out that the decision was on summary judgment. The government had been given an opportunity to rebut facts to show there were genuine issues, thus requiring denial of summary judgment. The government didn't rebut fscts, so the judge ruled in the plaintiff's favor.

I think my recollection of the procedural posture is correct. In any event, Prof. Kerr called it one of the worst reasoned decisions he had ever seen (a fairly serious charge, I think). Greenwald responded that Kerr failed to understand the procedural issues.

Prof. Kerr, I agree Greenwald is way off base in his name-calling approach to argument, but on this point, do you have a reply?
11.8.2008 4:13pm
zippypinhead:
In a shocking development, Josh's post wins this thread. Not because it's LOL funny, but because it's exactly right. And says it better than this mere pinhead ever could.
11.8.2008 4:14pm
Elliot123 (mail):
Greenwald appears to be saying we should follow him because he is passionate. What he fails to do is tell us why we should care a whit about his emotions.

Kerr tells us we should accept or reject an idea and lays out the reasons why. He appears to put much less value on his own emotions than does Greenwald.
11.8.2008 4:20pm
Elliot123 (mail):
"I agree with you on the merits of this one, Orin, but not all arguments deserve to be taken seriously in every forum. Otherwise, we would end up debating "creation science" every year in biology class."

Each fresh class of students needs to know why cretaion science is bogus. We actually do need to discuss it every year. Perhaps we don't need to debate it.
11.8.2008 4:22pm
SteveMG (mail):
Tribal denunciations against the actions of the other tribe don't require logic and rational or linear arguments.

My tribe is good; the other is evil and that's the end of the story.

Even if the story is 25,000+ more words.

[BTW, read Greenwald's excuses defending Putin's invasion of Georgia]
11.8.2008 4:25pm
Esquire:
The problem is that many positions are indeed deemed "unreasonable" by large portions of the population, and if they all became uncivil about it we'd fall apart!

Should pro-lifers become uncivil about debating abortion because they believe it's mass murder? Should gay-rights activists be uncivil because they believe their cause is equivalent to racial equality?

Similarly, issues like slavery and women's suffrage are now matters of unanimous consensus today, but before they were, would incivility have helped advance those causes?

Deeming a position "unreasonable" is a necessary but insufficient cause to be dismissive of it. We must work to achieve consensus on the issues that we think truly deserve it.
11.8.2008 4:26pm
Joe Bingham (mail):
Game, set, match...
11.8.2008 4:26pm
Sean O'Hara (mail) (www):

But do you not think Greenwald has SOME point? Perhaps you and he merely disagree as to where to draw the line, but it's generally considered an epistemological truism that before you begin an argument, you must agree the opposing position is at least epistemically credible, even if wrong. Otherwise you'd spend your day reasonably dispelling bizarre and outrageous claims no one took seriously in the first place.


It's absurd to argue against fringe kooks like Flat Earthers that no one takes seriously. But kooks that have sufficient political force that they can get their policies enacted, such as Creationists, do deserve to be argued against.

The policies of the Bush administration are obviously the latter.
11.8.2008 4:27pm
MisterBigTop (mail):
I agree 100% with Orin.

All the lefties screaming "Bush is Hitler!" didn't do a darn thing to actually stop any of the policies that concerned them or the President from getting reelected. Most Americans rolled their eyes at such complaints because it was pretty obvious to them that no matter how authoritarian some of the President's action were, they were nowhere near as extreme as Hitler's.

However, those who argued their positions in a more moderate tone in Washington and in the courts found significantly more success.
11.8.2008 4:35pm
EricH (mail):
Not to either side-track this discussion/exchange or to play gotcha' but has Greenwald written critically about the potential dangers (if he sees them) over the enormous power grab by the Administration in response to the credit/banking crisis?

It seems to me that long after the last Islamist is either dead or turned, the powers taken by the Treasury in recent months will far exceed those taken by the President on national security matters.

He who clangs the tocsin about those claiming plenary powers for the Executive during a military crisis should probably sound them during an economic crisis.
11.8.2008 4:41pm
MisterBigTop (mail):
""Backed by Yoo, Bush argues that whatever he says is the law of the land, and anyone who disagrees with him will be arrested and held indefinitely,""

Tell me how outrage and name-calling would be anymore effective at stopping this than reasonable, logical responses based on the Constitution's text?

There is a reasonable response to white supremacism that is more than cries of "Evil racist!" There is a reasonable response to the idea that the Earth is flat that is something more than "Luddite!" If you don't respond to these ideas in a calm, intelligent manner, then you leave open the possibility that people are going to see it as nothing more than two emotional people fighting over an issue and over several generations' worth of time, that is very dangerous.
11.8.2008 4:46pm
trad and anon (mail):
I think the most charitable way of construing Greenwald is that he sees Bush's torture policies as something like Holocaust denial or white supremacy: intellectually meritless and morally evil. A polite, civil debate about those ideas treats them as having a level of credibility that they don't deserve, as though they were something reasonable people could disagree about. In fact, one of the hallmarks of social progress since the 1950's has been that white supremacy is now an idea that it's considered completely unacceptable to express in polite company.

I agree with Greenwald (as I construe him) on this score. On the other hand, if there are a lot of people who really do think Bush's ideas were reasonable invective is not likely to be successful. The question is how successful invective can be in establishing a social norm that the Bush/Yoo theories of constitutional law should not be expressed. On that point I do not know.

As for Orin's point about the power of reasoned arguments, he evidence from experimental psychology does indicate that reasoned arguments are not very good ways to convince people of things. Social norms and appeal to majority are more powerful: people like to agree with their friends and neighbors.
11.8.2008 4:47pm
anon345 (mail):
For what it's worth, I read you Orin and hardly ever read Glenn and I independently came to the conclusion that you are an "apologist". An intelligent, thoughtful apologist, but still and apologist.
11.8.2008 4:47pm
MisterBigTop (mail):
Luddite should be neanderthal in my previous post.
11.8.2008 4:48pm
MisterBigTop (mail):
"A polite, civil debate about those ideas treats them as having a level of credibility that they don't deserve, as though they were something reasonable people could disagree about. In fact, one of the hallmarks of social progress since the 1950's has been that white supremacy is now an idea that it's considered completely unacceptable to express in polite company. "

I'm not sure how long lasting this will be if people are ignorant of WHY those ideas are bad.
11.8.2008 4:50pm
trad and anon (mail):
I'd add that it seems odd to call Orin an "apologist" for arguing against policies he opposed. Eugene, on the other hand, really does deserve the label. He never explicitly endorsed them, but he did periodically offer arguments in their favor, and no arguments against.
11.8.2008 4:56pm
EricH (mail):
It would be helpful for critics of the Bush Administration to denounce soundly and repeatedly the far more egregious actions by FDR during WWII. (Wilson, Lincoln et al.; but especially Roosevelt).

As a sometimes quasi-defender (yep, I qualified that as much as I could) of this Administration, I find it difficult to take at face value the purple-raged denunciations from people who think FDR was our greatest president.

He who denounces "A" should really denounce "A-to-the-tenth".

Admittedly, I'm being unfair; but not entirely.
11.8.2008 4:58pm
Asher (mail):
I think the most charitable way of construing Greenwald is that he sees Bush's torture policies as something like Holocaust denial or white supremacy: intellectually meritless and morally evil. A polite, civil debate about those ideas treats them as having a level of credibility that they don't deserve, as though they were something reasonable people could disagree about. In fact, one of the hallmarks of social progress since the 1950's has been that white supremacy is now an idea that it's considered completely unacceptable to express in polite company.

I agree that white supremacy itself doesn't deserve a polite rebuttal. But Greenwald isn't talking about torture itself; he's talking about various cases and the new FISA law. The analogy would be if Greenwald were to say that there's something wrong with questioning the validity of Brown v. Board, or expressing concerns about federalism issues in re the Voting Rights Act. If this were 1959, Greenwald would be fulminating in some rag about how Herbert Wechsler was a waterboy for segregationists, just because he dared to question the logic of Warren's Brown opinion in his famous Holmes lecture on neutral principles and constitutional law.
11.8.2008 5:01pm
x. trapnel (mail) (www):
Trad and Anon has it right (I'm the commenter whom GG was quoting, incidentally). What GG is trying to do is not necessarily convince the undecided, but to persuade those on his side that this is like white supremacy or Holocaust denial. He sees assumptions of good faith as not merely mistaken but dangerous, for the same reason that biologists worry about demands to "teaching the controversy"--there's always a temptation to assume the truth has to lie somewhere in the middle when people disagree.

I think GG's quest is a hopeless one, however--there's just no way to establish strong constitutional norms of executive constraint at this point. I think the problem is too deep, too structural--at the cultural and academic level, there's no cost (and many benefits) to expounding false but convenient constitutional constructions; at the institutional level, there's similarly very little cost to overreaching. And unpunished overreaching creates precedent such that there stops *being* any truth of the matter in certain constitutional domains, at which point it really is pure normative argument.

Ah, well. The torch of constitutionalism has passed to other nations; hopefully they'll have better luck with it.
11.8.2008 5:04pm
RPT (mail):
"Rod Blaine:

An interpretation put forward by a two-term administration, by high-powered DoJ lawyers, and by numerous academics can't be dismissed as "absurd" in the same way as "the moon landings were faked" crowd."

Yes, they can and should be rejected as "absurd". This contention would make more sense if the interpretations at issue were in fact put forward in public debate by lawyers who were not morally bankrupt partisans like Yoo and Addington. They lack a moral conscience. Addington is indeed high-powered, but not in an intellectual sense, but rather as a bully. The legal opinions of which Greenwald complains were hatched in the dark, not subject to peer review, and do not deserve being taken seriously as legal analyses, rather than recognized as self-serving rationalizations. The really "high-powered" lawyers like Comey, who made his own errors, properly rejected the travesties.

Re the "moon landings were faked" point, much of what has been learned about Guantanamo is that the alleged "terrorists" were faked; merely targets of opportunity for the Afghan bounty hunters.
11.8.2008 5:08pm
Michelle Dulak Thomson (mail):
trad an anon,

I think the most charitable way of construing Greenwald is that he sees Bush's torture policies as something like Holocaust denial or white supremacy: intellectually meritless and morally evil. A polite, civil debate about those ideas treats them as having a level of credibility that they don't deserve, as though they were something reasonable people could disagree about.

Yes, I understand that. Certainly there are people who take arguing the merits of Holocaust denial or white supremacy (or, for that matter, creationism, Jews-run-the-world fantasies, 9/11 "truth" conspiracies, or any number of other things) as not only a waste of time but actually counterproductive, in that people start to think that no one would bother expending so much effort combating an idea "if there weren't really something in it."

That said, this is not what ordinary people mean by "apology." The late Stephen Jay Gould spent an entire book taking apart a few centuries' worth of theories of racial superiority, and yet no one seems to remember him as an "apologist" for white supremacy. I've never seen Deborah Lipstadt, the historian David Irving unsuccessfully sued for libel when she ripped his "scholarship" apart, called an "apologist" for Holocaust denial. Nor have the many folks who demonstrated in the last few years, inter alia, that steel does melt been called "apologists" for the Truthers.

If all Greenwald meant was that dignifying the Bush Administration's line with a response more reasoned than "Vile scum, begone!" was too good for it, he ought to have come up with a different word.
11.8.2008 5:09pm
MisterBigTop (mail):
"What GG is trying to do is not necessarily convince the undecided, but to persuade those on his side that this is like white supremacy or Holocaust denial. He sees assumptions of good faith as not merely mistaken but dangerous, for the same reason that biologists worry about demands to "teaching the controversy"--there's always a temptation to assume the truth has to lie somewhere in the middle when people disagree. "

Can a comparison really be made to biological facts here though? This entire executive power debate is based on interpretation of a text, not the scientific method.
11.8.2008 5:10pm
Asher (mail):
What GG is trying to do is not necessarily convince the undecided, but to persuade those on his side that this is like white supremacy or Holocaust denial.

Right, but the new FISA act just clearly isn't in the same league as Holocaust denial. Maybe it's a bad law. But it's not deeply inhumane. And I don't even think Greenwald buys into his own position. He always links to Lederman on Balkinization, and Lederman isn't some deranged zany; he writes, very civilly and politely, about what he doesn't like about FISA or what have you. So really, it would seem that Greenwald's position isn't that you can't talk politely about these matters one way or another, but simply that you can't agree with the Bush Administration.
11.8.2008 5:10pm
Michelle Dulak Thomson (mail):
Oops, sorry, trad & anon, I see that you raised the same point about "apologist" that I did while I was writing my own post.
11.8.2008 5:12pm
Cornellian (mail):
I'm generally sympathetic to GG on various privacy / liberty / executive power issues, but he's a polemicist and therefore sometimes is a bit over the top. Just part of the job description.
11.8.2008 5:17pm
tvk:
Orin, I'm pretty much on your side of this debate (though I think it is a futile debate), but I think you are misunderstanding Greenwald's revised position. Greenwald's position is not that you considered ideas rather than the people who espoused them; it is that you considered absurd or ridiculous ideas on the same level as reasonable and non-frivolous ideas. To take a lawyer analogy, you granted certiorari on a question that was so easy it should have been summarily reversed with Rule 11 sanctions.
11.8.2008 5:19pm
zippypinhead:
I don't even think Greenwald buys into his own position. He always links to Lederman on Balkinization, and Lederman isn't some deranged zany; he writes, very civilly and politely, about what he doesn't like about FISA or what have you. So really, it would seem that Greenwald's position isn't that you can't talk politely about these matters one way or another, but simply that you can't agree with the Bush Administration.
Nice try, but the even more obvious conclusion is that Greenwald knows that there is room for reasoned debate here, but just doesn't care. Then we get to his motive for not caring.

And being generally suspicious of shrill blowhards, I am inclined to find Greenwald "guilty" of the specific intent crime of self-aggrandizement through attention-grabbing outrageousness. He's basically cut from the same cloth as such reasonable social commentators as Howard Stern and Jerry Springer -- the latter at least, being an attorney with a J.D. from a tier-1 school, former Bobby Kennedy aide and mayor of a large city, also knows exactly why he does it the way he does, just like Greenwald.

The best way to handle Greenwald is to ignore the guy...
11.8.2008 5:29pm
roan:
josh said:

I agree that there are issues that don't merit debate, but if Bush's FISA abuses, torture, etc. fit into that category, why hasn't every Guantanemo prisoner been released? Why hasn't every AT&T record been released?

Arguing that anyone who disagrees with you on these issues is an "apologist" or supports "lawlesness" just fails to recognize the practical realities of our legal system.


Why? In part due to - ironically and quite insidiously - the same sort of "good faith" presumption granted to the arguments of the government actors, on the part of too many "civil, serious" judges who simply accept very questionable arguments at face value (to the extent of refusing to "second guess" them and flatly declaring that bad faith does not exist, re the secrecy of FISA OLC analyses for example), as I happened to note in a comment yesterday regarding two (FISA and Guantanamo) FOIA case rulings from a week ago [http://volokh.com/posts/1225996753.shtml#481895].

Orin Kerr said:

It is true that I presume good faith for the sake of argument, even when I suspect bad faith is afoot (and that taking the argument seriously isn't a sign that I think the argument was made in good faith)) That is true whether the argument I am responding to was made by the Bush Administration or Glenn Greenwald.

Isn't it just a bit too easy to simply presume good faith motives by those actors who have long refused, for example, to publicly reveal the domestic NSA spying or its justifications? Doesn't that simply allow one to sidestep and ignore the damning and dangerous implications of any bad faith motives that may (and seem to) exist? Shouldn't we be concerned about, and try to expose and repudiate those who are acting in bad faith in our names?

Perhaps those, like Greenwald, who do confront head-on apparently bad faith actors when they perceive them ought to be applauded and thanked for choosing not to overlook the vital question of motive [setting aside the personal criticism Greenwald directed at Kerr insinuating that Kerr's motives are likewise suspect, which seems to be perhaps more than Greenwald intended or Kerr deserves]. After all, simply accepting the premise of good faith on the part of the actors - even if just "for the sake of argument" - keeps feathers from being ruffled among the powers that be, and reduces incoming fire directed at one's criticisms, but does it really get to the whole truth of the matter, in the end?

Or do people really believe that toxic, potently bad faith personalities like those of Dick Cheney and David Addington can ever be reasoned with at face value to an honest conclusion without taking stock of, and confronting, their bad faith and dishonorable conduct? Some people's arguments must be bypassed as the toxic and specious cover stories that they are - if one wants to make meaningful progress in ending repellent practices or excessive secrecy. Perhaps Greenwald is simply more motivated toward those ends, and less interested than Kerr in an academically-sterilized debate that seems more appropriate for a time after the worst of the ongoing atrocities have ceased.
11.8.2008 5:32pm
Nick056:
Orin,

I like mild discourse that weighs specific, opposing arguments against certain general and vital principles and then determines the sound position.

I think we all like that.

But there's a lesson to draw from Greenwald. It's not that some topics or arguments are beneath calm and logical refutation. It's that a response to some arguments cannot stop at a calm, logical refutation. A truly abhorrent policy deserves a chilly, reasoned refutation and a rhetorical — but still thoughtful — attempt to place that policy beyond the bounds of decency. If in tone and content, you determine that routine torture is, on balance, a hypothetically defensible but wrong and imprudent course of action, have you really said enough?

It might then be your responsibility, through persuasion, to place torture in a context that arouses outrage in your audience. Are you completing a puzzle and satisfying certain logical burdens, then moving on — or are you defending ideals without which country and constitution will die?

To defend Greenwald, I would say that reasoned discussion is necessary to impassioned defense, but impassioned defense is sometimes necessary to liberty.
11.8.2008 5:35pm
Calderon:
So remember boys and girls, if you seriously consider whether mandatory national service is an appropriate idea -- regardless of how respectful or incisive you are -- you're a shameless, radical, and lawless apologist for the coming liberal fascists state. You should just gasp at these policies, say that only Hitler and Stalin would propose such things, make references to brownshirts and re-education camps, and then be on your way.
11.8.2008 5:39pm
Angus Lander (mail):
Orin,

Construed in a certain way, Greenwald might be right that you legitimated barbarous policies. It is surely possible that when credible people argue in measured tones about the desirability of policies, instead of simply treating them as taboo, they make it more likely that those policies be adopted (largely by "normalizing" them). That said, (a) where's Greenwald's evidence? and (b) there's a pretty gaping lacuna here: by engaging in reasoned argument you might legitimate barbarous policies therefore there are some policies you should simply declare beyond the pale.

Zippypinhead,

Coming from someone who's volubly defending the use of reasoned argument against putatively outrageous claims, this is either brilliant self-parody or pretty absurd:


Greenwald is continuing to spew against you mainly because he's getting a reaction. His position is not only indefensible, it's positively bizarre, at least for somebody who calls himself a grownup...If everyone would just ignore Greenwald's flame, that would be the best punishment.
11.8.2008 5:46pm
Light Hearted (mail):
Mister Big Top quotes my hypothetical:

"Backed by Yoo, Bush argues that whatever he says is the law of the land, and anyone who disagrees with him will be arrested and held indefinitely,"

And responds:

Tell me how outrage and name-calling would be anymore effective at stopping this than reasonable, logical responses based on the Constitution's text?
--

I guess my point is there is a time for argument and at some point there comes a time for something beyond argument. When gays at Stonewall in 1969 were being bullied by the authorities, should they just have continued to submit to it, as they had for many years, should they have written a well-developed reasoned and logical argument to their Congressman or the New York Times, or were they right to think perhaps at some point a display of force to maintain your rights is justified, even if against "the authorities"?

An interesting empirical point: I understand over the last year the price of ammunition for all variety of guns has about doubled...
11.8.2008 5:48pm
zippypinhead:
Coming from someone who's volubly defending the use of reasoned argument against putatively outrageous claims, this is either brilliant self-parody or pretty absurd.
I'd love to say the former, but clearly the latter is correct. I'm a pinhead, remember? [and you thought I chose this particular pseudonym just to be anonymous, eh?]

Or perhaps another option is correct: maybe it was a forceful attempt to suggest that Professor Kerr should stop doing this interminable tit-for-tat dance with Greenwald, without saying things I really think, like "Orin, you're sounding AWFULLY thin-skinned for somebody who knowingly made himself a public figure on several levels, including but not limited to a widely-read blog."

Bugs Bunny realized very quickly that reasoned debate with the Tazmanian Devil didn't accomplish his goals, either... (tho I am not sure I can picture Orin ever using Bugs' type of self-help remedies... too bad, it would be a Youtube hit).
11.8.2008 6:02pm
SenatorX (mail):
In a world of diverse opinion, you can either engage on the merits or try to bully the other side; I guess I'm not a fan of bullies

Yet you are a bully sometimes.
11.8.2008 6:07pm
huskerfan:
Professor,

I still haven't heard you justify your comments you made regarding the procedural issues in the Taylor decision. I think it would be great to responsed to the argument. Why was Judge Taylor's decision so bad?
11.8.2008 6:23pm
byomtov (mail):
I only blog about issues when there is a colorable and interesting set of legal issues on which people in good faith disagree.

I think much of the disagreement may be right here. It seems to me that Greenwald is not, at heart, making legal arguments at all, but rather moral ones. As I read him he is saying these policies are so outrageous, so morally abhorrent, that to focus on their legality is wrong-headed. This is because legality is secondary. If a policy is abhorrent you don't adopt it, legal or not. So there's no need, at that point, to discuss the legality at all. Once you do, you are conceding that the policy is worth considering, is not morally out of bounds.

Imagine a pregnant woman who is strongly anti-abortion. Someone suggests to her that she consider an abortion because, after all, it's legal. Would you expect a calm debate on Roe v. Wade to ensue?

I admit that I don't remember all of Kerr's posts on these issues, so I don't know if they all dealt simply with legal aspects. But if so, then isn't that what Greenwald is angry about?
11.8.2008 6:27pm
Dave Hardy (mail) (www):
Hmmm... sounds like Mr. G. really likes getting indignant, and thus views anyone who criticizes a policy without getting indignant as an apologist for it. In short, you must share his emotional state or you must be a bad person. A touch of narcissism, perhaps?

I always found the best response to people like that is parody. They're quite ill-equipped to deal with it, and it excites amusing reactions.
11.8.2008 6:37pm
Dave N (mail):
David Hardy,

Perhaps Glen Greenwald and JBG are one in the same person, since they employ similar tactics. Has anyone ever seen them together?
11.8.2008 6:50pm
zippypinhead:
Perhaps Glen Greenwald and JBG are one in the same person, since they employ similar tactics. Has anyone ever seen them together?
Dang, I'm changing my vote. Dave N wins the thread!
11.8.2008 7:21pm
David Warner:
Michelle Dulak Thompson,

"Oops, sorry, trad &anon, I see that you raised the same point about "apologist" that I did while I was writing my own post."

No "apology" necessary, as you raised the point so well. Thank you for your incisive post.
11.8.2008 7:28pm
David Warner:
Dave N,

"Perhaps Glen Greenwald and JBG are one in the same person, since they employ similar tactics. Has anyone ever seen them together?"

I haven't seen them together, but has anyone seen JBG on these premises at all since Election Day?

Was he an Axelrod plant after all? Axelrod?
11.8.2008 7:41pm
Bored Lawyer:

Perhaps Glen Greenwald and JBG are one in the same person, since they employ similar tactics. Has anyone ever seen them together?


No, this has become an increasingly common tactic of the left -- substitute moral posturing for reasoned discourse. Like if you criticize Obama, you must be a racist.
11.8.2008 7:54pm
LM (mail):
Dave N,

Perhaps Glen Greenwald and JBG are one in the same person, since they employ similar tactics. Has anyone ever seen them together?

I've more than once defended jbg, and have indeed been accused here of being his sock puppet.* Now that you've pulled the curtain back on jbg's status as just another of GG's multiple online identities, there's no point continuing this charade.

I AM GLENN GREENWALD!!


(*Oddly, I've also been called a neo-con on left-leaning sites more often than I can count. In fact, on some Alan Dershowitz Middle East threads at Huffington Post, I've been accused of being Dershowitz's sock puppet. So maybe the real answer is that Alan Dershowitz is Glenn Greenwald.)
11.8.2008 8:03pm
Elliot123 (mail):
I can't help but think those who consider some things so obvious they need not be discussed really lack a cogent argument. If it is so easy, and so obvious, then it should be very easy to revail in a reasoned discussion.
11.8.2008 8:10pm
Dave N (mail):
LM,

Funny, I never thought you were JBG's sockpuppet--though I am convinced he employed them. The reason I never felt that is that you and I can disagree without being obnoxious and disagreeable--and it was always my impression that JBG enjoys being obnoxious and disagreeable.
11.8.2008 8:12pm
JunkYardLawDog (mail):
I think Greenwald has it exactly backwards,

What a curious perspective on the world.



This backward view of the world may stem from the fact Greenwald spends a considerable amount of time viewing the world in the southern hemisphere with his backside facing up.

Says the "Dog"
11.8.2008 8:14pm
Somebody's sockpuppet (www):
I long ago concluded JBG + Scote = 1. And seeing either on a thread lately usually causes me to immediately hit the "back" button and not bother reading further. JBG/Sco seemed to have an uncanny ability to ruin dialogue, and way too often seemed to run in a pack.

Hey, I wonder if one of the more enlightened co-bloggers on VC finally banned JBG? Darn, stuff like that could even make me think prior restraints on speech may not be all bad...

I suspect Greenwald and JBG aren't related. That's nearly as improbable as Greenwald being Lindgren's evil, schizophrenic twin. Besides, JBG has a longer attention span than Greenwald. Although if OK is the Conspirator who banned JBG, that might explain Greenwald's out-of-left-field attack on him?

If VC wanted to put a crimp in sockpuppetry here, all they'd need to do is publish the IP address of each "guest" that adds a comment.
11.8.2008 8:45pm
David Warner:
Dave N,

"The reason I never felt that is that you and I can disagree without being obnoxious and disagreeable--and it was always my impression that JBG enjoys being obnoxious and disagreeable."

Disagreeable? No, if you were on his team, he agreed; not, not. He was the most utterly predictable human being* I've ever encountered, and evidently entirely unaware of the impression he made.

* - which is what proves that he was human: an AI would simulate variety.
11.8.2008 8:52pm
Dave N (mail):
David Warner,

I enjoy vigorous debate. I have engaged in vigorous debate with some of the more liberal posters here. Most, like Mark Field, to use a good example, are stalwart in their beliefs but do not treat the opposing view with utter contempt. I enjoy discussions with posters like that.

JBG, not so much.
11.8.2008 9:05pm
Bleepless:
Civility makes you complicit with Greenwaldism. Good Professor Kerr, you merely are playing to his preening.
11.8.2008 9:30pm
jminqiwml (mail):
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G'night
11.8.2008 9:49pm
CatCube:
Somebody's sockpuppet:
If VC wanted to put a crimp in sockpuppetry here, all they'd need to do is publish the IP address of each "guest" that adds a comment.


One other solution I've seen is over on mee.nu. They don't publish your IP address, but they publish a hash of it. This has the advantage of producing an easily-recognizable "fingerprint" for every poster (easier than the IP address), without putting out too much personal information.
11.8.2008 9:53pm
Swede:
GG exists for my amusement.

Kind of like two bums fighting.

And, more and more, like you for even having a discussion where you use the words "Glenn Greenwald", "argument", and "credibility" in the same post.

Next time use the words "marmalade", "hubcap", and "goiter". I guarantee you those three words have a stronger link than your three words.
11.8.2008 9:53pm
winstontwo (mail):
Greenwald's criticism is spot on.

Orin's original post omitted, in toto, discussion of our governments bizarre and inhumane treatment of Al-Marri in favor of a dessicated discussion of a hypothetical that had little to do with the Al-Marri facts.

Put simply: when your government is engaging in a wholesale unlawful torture of citizens and non-citizens, abridgement of fundamental rights, and so forth and you don't at least denounce those activities at every opportunity you have - you are an APOLOGIST.
11.8.2008 10:52pm
winstontwo (mail):
Oh, and civility ain't got nothing to do with it.
11.8.2008 10:52pm
David Warner:
"Oh, and civility ain't got nothing to do with it."

Where's your denunciation in that sentence? Apologist!
11.8.2008 11:10pm
David Warner:
OK,

"It is true that I presume good faith for the sake of argument, even when I suspect bad faith is afoot (and that taking the argument seriously isn't a sign that I think the argument was made in good faith) That is true whether the argument I am responding to was made by the Bush Administration or Glenn Greenwald."

That's going to leave a mark.
11.8.2008 11:12pm
tsotha:
Every day I learn something new. For instance, it seems if you're labeled a certain way in ALL CAPS, it must be true even if buttressed by a weak and/or mendacious argument.
11.8.2008 11:28pm
winstontwo (mail):
tsotha

Two questions 1) do you believe the Bush administration has tortured citizens and trampled on constitutional rights.

If you answer that question no, then I'll bid you a good night, since I imagine you have some "Palin 2012" signs to be painting.

If yes, would you care to list some posts by Mr. Kerr clearly denouncing this criminal activity?
11.8.2008 11:32pm
Mike Keenan:

The Bush administration was able to get away with its extremism and lawlessness over the past eight years

You would think we had just suffered the Disappeared of Argentina.
11.9.2008 12:19am
wyswyg:
Greenwalds argument is extremely conservative in an important respect. He is saying that society should NOT pay certain views the courtesy of rationally considering them, but should instead immediately reject them with revulsion.

But I'm confident that he would not argue that the same technique should be applied to, say, gay marriage. Any attempt to dismiss that with an appeal to emotion would not get far with GG. And on what rational basis does he make that distinction? None. His entire world view is based on feeling, not on thinking.
11.9.2008 12:35am
wyswyg:
Would you patiently argue against a government policy that said not only could non-citizens be legitimately tortured by American personnel, but so could their children and parents?


Talk about begging the question. Nobody is being tortured. Nobody was tortured. You can stop tossing and turning at nights worrying about it.
11.9.2008 12:38am
wyswyg:
If everyone would just ignore Greenwald's flame, that would be the best punishment.

I confess, I've never understood how this mans opinions became a topic for debate on the web. Even if you agree with the gist of what he says, there are other people saying it better. That is, with greater brevity and less histrionics. But some people seem to like that emotionally overwrought style. How else would Andrew Sullivan stay in business?
11.9.2008 12:44am
wyswyg:
do you believe the Bush administration has tortured citizens and trampled on constitutional rights.

If you answer that question no, then I'll bid you a good night, since I imagine you have some "Palin 2012" signs to be painting





Speaking of people who substitute their emotions for rational argument ... Hi winston!


I do not and did not have a Palin 2012 sign. But I would like to hear more about these "tortured citizens" of the Bush administration. I know his speech's were hard to take at times, but come on.
11.9.2008 12:50am
LM (mail):
wyswyg,

I take it you're assertion is that water-boarding isn't torture, not that no one was water-boarded.
11.9.2008 1:08am
LM (mail):
Does anyone know what jminqiwml's spam is all about? I'd rather not reward it with a page hit to find out.
11.9.2008 1:12am
Asher (mail):

Two questions 1) do you believe the Bush administration has tortured citizens and trampled on constitutional rights.


If yes, would you care to list some posts by Mr. Kerr clearly denouncing this criminal activity?


So now the guy's got to denounce everything wrong going on in the world? Okay, charitable interpretation time - now the guy's got to denounce everything wrong going on in the world with some connection to the law? I thought Stevens's recent dissent in the Millionaire's Amendment case deserved some eviscerating criticism. I'm almost positive that Professor Kerr would agree. He didn't bother denouncing it though - that is, he didn't comment on it. So I guess that makes him an apologist for Stevens's bizarre reasoning* in his dissent?

* Stevens says that, since the Supreme Court's allowed to limit how long counsel can talk in oral argument to a mere 40 minutes, and limit the length of counsel's briefs it ought to be constitutional to put caps on campaign spending and prevent candidates from "flooding the airwaves with slogans and sound-bites." Because that's analogous. Really makes you wonder if the guy is still in mens sana. But now I'm getting Greenwaldian.
11.9.2008 1:29am
jukeboxgrad (mail):
For me one of the entertaining aspects of reading VC is when I read a thread and realize I'm being mentioned even though I haven't posted in that thread.

dave n:

Perhaps Glen Greenwald and JBG are one in the same person


(You are mangling the expression.)

Another entertaining aspect is to notice all the guesses about my alleged multiple identities. Lots of those guesses seem to keep popping up. A few are summarized here.

By the way, GG has said some nice things about me. Like here. You'll have to decide if this helps or hurts your sockpuppet theory. (The GG post I'm pointing to mentions stuff I wrote that is no longer online, because it was in his comments area, which is no longer part of his blogspot archives.)

it was always my impression that JBG enjoys being obnoxious and disagreeable


I think what we have here is another instance of projection.

lm:

have indeed been accused here of being his sock puppet


I don't remember seeing that, but I take it as a distinct compliment.

somebody:

I long ago concluded JBG + Scote = 1


I take that as a compliment too. Scote and LM both write a lot better than I do.

warner:

but has anyone seen JBG on these premises at all since Election Day?


Yes.

By the way, I've been commenting here for about three years. Sometimes I take long breaks. Don't get your hopes up. Absence of evidence is not evidence of absence.

somebody:

I wonder if one of the more enlightened co-bloggers on VC finally banned JBG?


I guess not. Although Bernstein has threatened to ban me, twice. I'll leave it to you to judge whether he is "one of the more enlightened co-bloggers on VC."

if OK is the Conspirator who banned JBG


OK once said this about some comments I wrote (regarding subject matter relevant to this thread):

I thought your comments were terrific. Very strong stuff.


And EV recently said this:

I have nothing against the substance of your comments


I guess there's no accounting for taste.
11.9.2008 1:35am
jukeboxgrad (mail):
So in the interest of trying to find some common ground between OK and GG, let me point out again what GG once said about comments I left at his place:

The industrious Jukeboxgrad, however, has written two additional superb Comments … I highly recommend these thorough and well-argued responses from Jukeboxgrad.


And here's what OK once said about comments I left at VC:

I thought your comments were terrific. Very strong stuff.


In both cases, the subject matter was FISA. So does this prove that GG and OK are in agreement about FISA? I guess not, but maybe it's still some kind of a hopeful indicator.

And has anyone else commented at both VC and GG and drawn compliments from the host at both places? I don't know, but if it happened, they might have been my sockpuppet.
11.9.2008 1:53am
bushbasher:
1) of course greenwald is right: civility can make one an apologist for lawlessness. to debate the merits of torture, for example, is not being rational, it's being psychopathic. it's the kind of "reason" that herman kahn turned into an art form.

2) does it fairly apply to orin? i don't know him well, but his al-marri post to which greenwald referred was pretty appalling, a pretty good example of polite rabidity. and, the fact that orin declined to refer to that post here, the fact that he prefers to play abstract sophistic games? score one for greenwald.
11.9.2008 4:28am
Kevin P. (mail):

Greenwald:
The industrious Jukeboxgrad, however, has written two additional superb Comments … I highly recommend these thorough and well-argued responses from Jukeboxgrad.


It looks like they give each other a reach around too.

Not that there's anything wrong with that.
11.9.2008 7:44am
Kevin P. (mail):
Prof. Kerr, I don't understand why you are even trying to bother with Glenn Greenwald. The man is a gaseous windbag (but I repeat myself). He is always right. People who don't share his opinion are always wrong. In fact, they are not just wrong, but they are often evil. Arguing with Greenwald is like wrestling in the mud with a pig. You will just get dirty and the pig will enjoy it.

Please take the high road, ignore this buffoon and let him root in the mud for his truffles. There are plenty of liberal and lefty bloggers who can conduct a discussion and argument with civility and dignity. Some of them comment on this blog too.
11.9.2008 9:04am
Kevin P. (mail):
And as a bonus, they can make an argument in less than 25,000 words.
11.9.2008 9:05am
lonetown (mail):
I guess when your case is that "lawlessness" is how YOU define it, well then the argument is clear.

Never mind that your opinion on lawlessness is BS.
11.9.2008 9:20am
Jim O'Sullivan (mail) (www):
If I were exposed as a sock puppet, I wouln't expect to be take seriously anymore. If I were attacked by one, I doubt that I would bother to notice. But people still notice him, as if what he thinks is a matter of some importance. It is not.
11.9.2008 9:40am
Nigel P (mail):
@Mike Keenan

"You would think we had just suffered the Disappeared of Argentina."

That, sadly, is precisely the point. If some of "we" had suffered the same outrageous, unlawful and egregious treatment as some suffered under the Bush administration, perhaps there would be less polite discussion and more outrage.

Fortunately, the recipients of said treatment were for the most part faceless foreign nobodies so were are able to discuss the matter in a civilized way without a so much as a raised eyebrow....
11.9.2008 10:42am
Kerr's Puppet (mail):
Jukeboxgrad writes a wonderful Brief in Support of Jukeboxgrad. I assume we'll see JBG following tradition and citing to it on other threads down the road as support for what a wonderful, insightful person JBG happens to be.


And sometimes I think there's a secret plot by Kos to destroy all reasonable discourse on the blogsphere, but that's probably an overstatement. Just the English language portion of the blogsphere is at risk.
11.9.2008 10:45am
einhverfr (mail) (www):
I think someone should point out that something is lawless when it is. The whole "habeas doesn't apply when we says it doesn't" was pretty lawless. I also thought the torture viewpoints were pretty lawless.

However, on the whole I think you are right that civility is needed in these cases.
11.9.2008 12:22pm
MnZ:

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.


But what if the goal isn't to persuade the masses?

I suspect that Greewald's goal is to isolate political opponents. The quickiest way to isolate one's political opponents is to attack anyone who gives those opponents an honest, unbiased assessment of those opponents. Once opponents are isolated...they can be crushed.
11.9.2008 1:34pm
PubliusFL:
I'm sure Greenwald also believes that "constitutional constraint depends on elites and ordinary citizens not merely *disapproving* of governmental overreach but *hating* it, being *outraged* by it" when it comes to gun control laws, and he believes "elites" should deny even a civil consideration of the arguments of those who propose restrictions on the right to bear arms.
11.9.2008 1:36pm
MnZ:
Err...make that:

I suspect that Greewald's goal is to isolate political opponents. The quickiest way to isolate one's political opponents is to attack anyone who gives those opponents an honest, unbiased assessment of those opponents' positions. Once opponents are isolated...they can be crushed.
11.9.2008 1:39pm
NickM (mail) (www):
LM - no American citizens were waterboarded as part of detention or interrogation that I'm aware of. Are you saying that any were?

Nick
11.9.2008 2:42pm
bushbasher:
orin's latest postscript is laughable: greenwald points out exactly the problem with orin's authoritarian nastiness in regard to al-marri, and orin replies with snide vacuousness. greenwald is exactly right. orin is well-mannered but his manners only contribute to his legitimizing bush's legal thuggery.
11.9.2008 4:59pm
LM (mail):
NickM.

I overlooked the "citizen" part. My mistake.
11.9.2008 5:53pm
LM (mail):
Jim O'Sullivan:

If I were exposed as a sock puppet, I wouln't expect to be take seriously anymore. If I were attacked by one, I doubt that I would bother to notice. But people still notice him, as if what he thinks is a matter of some importance. It is not.

As was pointed out on an earlier thread, there are better explanations for what happened than sock puppetry.
11.9.2008 6:00pm
LM (mail):
Kerr's Puppet:

Jukeboxgrad writes a wonderful Brief in Support of Jukeboxgrad.

Otherwise known as defending himself. In fact, at the risk of being accused of a reach around, I'll point out the ironic parallel between jbg's substantive yet civil response to being attacked here and Orin's response to the same by GG.
11.9.2008 6:13pm
Dr Rick (mail):
As was pointed out on an earlier thread, there are better explanations for what happened than sock puppetry.
However, those better explanations are much harder to make into frivolous ad hominems.
11.9.2008 6:32pm
wyswyg:
"I'll point out the ironic parallel between jbg's substantive yet civil response to being attacked here and Orin's response to the same by GG".

Did you just accuse Orin of being uncivil and unsubstantive?

Maybe you can back up that assertion in a civil and substantive fashion.
11.9.2008 6:56pm
bushbasher:
orin's post is obviously civil, and much more obviously unsubstantive.
11.9.2008 7:07pm
LM (mail):
wyswyg

Did you just accuse Orin of being uncivil and unsubstantive?

No, I said both of them replied substantively and civilly to personal attacks.
11.9.2008 7:46pm
LM (mail):
["them" = Orin and JBG]
11.9.2008 7:48pm
winstontwo (mail):
Post Script on Greenwald: Glenn Greenwald has yet another [that's a little bitchy] post up defending his description of me as an apologist for lawless and radical Bush policies. As you might expect, it is highly dismissive[that's pretty bitchy, too]: 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.[that's a little bitchy, three]) My original goal in responding to Greenwald was to see if there was any substance to back up the bluster[is "bluster what civil people call bullshit?]. I think it's fair to say that question has been answered, so it's time to move on.
11.9.2008 7:57pm
Kevin P. (mail):
I was the one who observed a reach around in Greenwald's slimy pat on the back of JBG (no pun intended). My observation was intentional and consistent with the modus operandi of both Greenwald and JBG. At least I didn't accuse them of being apologists for - or practitioners of - criminal behavior, with which they routinely smear their political opponents. Both of these individuals routinely relieve themselves in the middle of the marketplace of ideas, making it more difficult for ideas to be discussed with reason and logic.

We'd be better off ignoring both of them and their obnoxious rhetoric.
11.9.2008 8:01pm
winstontwo (mail):

he has defended such policies -- not all of them, as I stated explicitly from the start, but many of the worst ones, including, as but one illustrative example, the Bush administration's reprehensible, ongoing detention of Ali Saleh Kahlah al-Marri, based on the broader theory that the President has the authority to order even U.S. citizens (and legal residents) on U.S. soil imprisoned as "enemy combatants" indefinitely without charging them with crimes and without having to prove them guilty in courts of law.

True or false?

If true, Greenwald's argument has merit.
11.9.2008 8:01pm
Kevin P. (mail):
winstontwo, you seem to like the bitch word in connection to Glenn Greenwald.

</MindlessSnark>

See what you sound like?
11.9.2008 8:05pm
Kevin P. (mail):
And Prof. Kerr, another good reason to ignore Greenwald is the plague of Greenwald groupies that will descend upon your post in shrieking outrage.
11.9.2008 8:07pm
bushbasher:
i don't hear any shrieking. all i hear is contempt, because greenwald raises substantive criticism of kerr's al-marri post, and kerr simply ducks whilst affecting an air of smug superiority.
11.9.2008 8:25pm
zippypinhead:
Professor Kerr, thanks for indicating in your new post that you're finally going to stop wasting brain cells responding to Greenwald's drivel. It's clear he's happy to do an Energizer Bunny tit-for-tat on this subject forever. In fact, it's pretty clear he's enjoying twitting you. His last rebuttal is the most juvenile yet. Sort of like the second grade bully who can't help teasing the smart kid as a way of proving to himself (and his groupies) that he's "better." Only here Greenwald gets a tangible material benefit because he's driving more traffic to his pages (and I suspect he earns money from Salon for every additional eyeball he lures to the site). Time for the grown-ups to walk away and ignore him. Stop enriching him either psychologically or monetarily.

Two cliches make the point more succinctly than a long winded pinhead like myself ever can:

1. "Never to wrestle with a pig. You get dirty, and besides, the pig likes it." (George Bernard Shaw)

2. "Do Not Feed The Troll..." (passim)
11.9.2008 8:53pm
jukeboxgrad (mail):
kevin:

It looks like they give each other a reach around too.


If GG praising what I wrote is the equivalent of "a reach around," then what does it mean when OK praises what I wrote? Since they both did so.

Anyway, I look forward to your continued efforts to enhance civility.

-------------------------

kerr's:

support for what a wonderful, insightful person JBG happens to be


I wasn't quoting myself praising what I wrote. I was quoting OK and GG praising what I wrote. Then again, maybe you think they're my sockpuppets.
11.9.2008 9:40pm
Mike Keenan:

If some of "we" had suffered the same outrageous, unlawful and egregious treatment as some suffered under the Bush administration, perhaps there would be less polite discussion and more outrage.

What are you talking about?
11.9.2008 10:07pm
Bill Kilgore:
The eagle never lost so much time as when he submitted to learn of the crow.
11.9.2008 10:19pm
Dr Rick:
"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." - Orin Kerr


Agreed; there appears to be little in the way of substance to back up Mr Kerr's bluster.
11.9.2008 10:23pm
Judd (mail):
I would have wished that your (apparently) final response to Glenn Greenwalt a few posts up the page would have permitted comments. I think you, ultimately, are the one being "dismissive" of the arguments made by GG in insisting he argues merely that "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.)".

I think you unfairly dismiss his argument by insisting his posts boils down the invectives listed above . . .particularly in light of his assertion that these don't of themselves demonstrate you are an "apologist", but rather because you "supported" the positions he accuses you of. His three posts on this thread set forth the relevant material on the merits, but you seem content to argue the meta. Pleading that we read your posts re: Al Marri, without more, is inadequate.
11.9.2008 10:39pm
loafingoaf (mail):

If everyone would just ignore Greenwald's flame, that would be the best punishment.


There's a mentality in the political blogosphere that blogs have their "comrade" bloggers and they should erect a wall between themselves and the "enemy". I miss the days when bloggers of all persuasions were engaging each other, instead of encouraging parallel universes and Berlin Walls between each other (except when they find an opportunity to mock each other). It's very interesting for me (a mere blog reader) to see Orin and Greenwald go back and forth. It's annoying to me when people say the "enemy" blogs should just be ignored.
11.9.2008 10:40pm
Kerr's Puppet Again:
Jukeboxgrad writes:
"I wasn't quoting myself praising what I wrote. I was quoting OK and GG praising what I wrote. Then again, maybe you think they're my sockpuppets."

No, I was just remembering how in the past on this blog you've been caught and called out for citing your own posts elsewhere as support for your arguments. Circular cites to yourself as persuasive authority may not be quite as bad as what Joe Biden's been caught doing a few times, but it sure doesn't enhance your credibility...

Incidentally Jokebox - if you marvel that people talk about your posting habits even when you're not immersed in the particular thread, has it ever occurred to you that maybe it's because you've not developed a very good reputation for yourself in general (please don't bother rebutting by re-posting the 2 favorable comments you received on your thoughts. How many thousand posts do you make in a year, anyway? How many thousand responses do you get taking issue with both your substantive views and the obnoxious way you sometimes express them? You betcha! [wink]).
11.9.2008 10:42pm
Howard Gilbert (mail):
In 2001 Al Marri was a soldier in the Afghan army who volunteered to enter the US and commit an act of sabotage. He pretended to be a student and passed through US lines of defense by booking passage on a commercial airliner across the Atlantic. He was in Peoria, Ill for several months before he was arrested by the FBI.

For precedent, in 1776 Captain Nathan Hale, an officer in the Continental Army volunteered to go behind British lines of defense to gather intelligence. He dressed as a civilian, pretended to be a teacher, and booked passage on a commercial ferryboat across Long Island Sound from Connecticut to Long Island. He was on Long Island for a week before being arrested by British soldiers.

Although Britain also ran the civil government, Nathan Hale was never charged or tried on criminal charges before any civilian court. He was an enemy solider captured out of uniform. He was held in military custody. He was also tried in a military court on the military offense of "crossing lines without uniform," an offense against the Laws of War that is not regarded as a "crime". Hale was executed, but if you can kill someone I suppose you could also detain him indefinitely.

"the Bush administration's reprehensible, ongoing detention of Ali Saleh Kahlah al-Marri, based on the broader theory that the President has the authority to order even U.S. citizens (and legal residents) on U.S. soil imprisoned as "enemy combatants" indefinitely without charging them with crimes and without having to prove them guilty in courts of law."

It is true that al Marri has not been charged or proven guilty of a crime, but that is because it is not a crime to join a foreign army at war with the US, nor is it a crime for an enemy soldier to enter the US. It is not even a crime to be part of an invasion force that enters the US. When an enemy soldier is captured, he is held by the US military.

Until the current war, enemy soldiers captured in civilian clothes behind US lines of defense like al Marri were tried by Military Commission and executed. The first case was Major John Andre who was captured in 1890 returning from a meeting with Benedict Arnold. He had the plans for the defense of West Point stuffed in his boot. Interestingly, his defense was that he had been invited by Arnold who, as an American General, had the authority to invite him to pass through US lines of defense (much as those representing al Marri think it important that he entered the US with a valid student visa). This did not impress General George Washington nor the court of General Officers who convicted Andre and sentenced him to be hung.

Since al Marri was not tried by the military and hung, the Hamdi decision guarantees his due process right to contest his classification as a combatant before an impartial tribunal. Judge Floyd gave him a hearing in Federal District Court and then entered a judgement that al Marri was in fact an enemy combatant properly detained by the military. That judgement was appealed to the Fourth Circuit, which ruled that if al Marri is an enemy combatant he can be detained, but also ruled that the District Court should have used different rules of evidence. The case was remanded for a new hearing, but al Marri wants to appeal to the Supreme Court on the assertion that even if he is an enemy combatant as claimed, he cannot be detained in military custody because of his capture inside the US.

Lets try it again from another angle. John Hinkley shot a US president. He was tried and found not guilty, but he has been detained (committed to a mental institution) for the rest of his life. Like al Marri, he is subject to indefinite detention despite the fact that he was not found guilty of any crime. Like al Marri, he was subject to a different type of legal proceeding (not a criminal trial) appropriate for the claim made by the government (that Hinkley was dangerously mentally ill, that al Marri is an enemy soldier who entered the US to commit sabotage).

So yes it is true that Bush believes that "the President has the authority to order even U.S. citizens (and legal residents) on U.S. soil imprisoned as enemy combatants indefinitely without charging them with crimes and without having to prove them guilty in courts of law." He also believes that bank robbers can be charged and tried for bank robbery without also having to prove that they are ciminally insane, and that insane people can be committed without having to prove they are bank robbers. If someone is held as an enemy combatant, then the Supreme Court provides through Hamdi the appropriate form of judicial process to contest the combatant classification. Al Marri was given such a judicial process, and will get a new hearing if the Supreme Court rejects the petition or finds against him.

Meanwhile, since George Washington, FDR, and Truman all captured enemy soldiers behind US lines and then executed or detained them for long periods without a criminal charge being made or trial in a civilian court, it seems that Orin has a pretty strong basis for suggesting that this position is not as terrible as some would paint it.
11.9.2008 11:58pm
OrinKerr:
WinstonTwo quotes Glenn Greenwald:

he has defended such policies -- not all of them, as I stated explicitly from the start, but many of the worst ones, including, as but one illustrative example, the Bush administration's reprehensible, ongoing detention of Ali Saleh Kahlah al-Marri, based on the broader theory that the President has the authority to order even U.S. citizens (and legal residents) on U.S. soil imprisoned as "enemy combatants" indefinitely without charging them with crimes and without having to prove them guilty in courts of law.

WinstonTwo asks:

True or false? If true, Greenwald's argument has merit
The answer, of course, is false. EMPHATICALLY false. I have never even suggested anything remotely like that. I believe the constitution plainly forbids the noncriminal detention of citizens and legal residents. See Ex Parte Milligan. That is one of the many reasons why Greenwald's argument has no merit: He needs to invent positions that he claims are mine in order to make his case. It's really quite shameful, but seems par for the course in his case.
11.10.2008 12:41am
Jay Ballou (mail):
If your point is that there are some positions so absurd that no one could agree with them, then that is of course true. But I wouldn't blog about those issues; if the argument is absurd, there is no need to blog on it and I wouldn't waste my time with it. I only blog about issues when there is a colorable and interesting set of legal issues on which people in good faith disagree.

The assertion that those who promote anti-constitutional stands do so in good faith is itself made in bad faith. The notion that John Yoo is acting in good faith is ludicrous.
11.10.2008 1:53am
Jay Ballou (mail):
The answer, of course, is false. EMPHATICALLY false. I have never even suggested anything remotely like that.

You're simply a liar. GG cited the post in which you argued just what he said you argued: http://volokh.com/posts/1181615410.shtml

As Cassandrus says there:

Doesn't this same logic apply really to any crime? Setting aside questions of magnitude, couldn't we replace the terrorists in this example with, say, a child rapist. In that case, the police wouldn't even have the opportunity to deport him. They would simply have to let a child rapist go free! Preposterous! Throw him in Gitmo! Your issue here isn't with Al-Marri, its with the fourth amendment, at least in cases where public safety is endangered.

Additionally, I think assuming the clear guilt of the suspects brackets a ridiculously salient issue. Of course if we assume guilt, the fourth amendment doesn't really stand up. No due process guarantees do--if only the guilty are prosecuted all they do is help the guilty escape their just punishment. But not everyone who is prosecuted is in fact guilty and that is why we safeguard civil liberties. To assume guilt is to dodge the meat of the issue.
11.10.2008 2:06am
Jay Ballou (mail):
It's annoying to me when people say the "enemy" blogs should just be ignored.

No one at GG's blog is saying that Orin Kerr should be ignored; far from it. OK should be concerned that he gets so much support from so many intellectually dishonest slugs.
11.10.2008 2:11am
Jay Ballou (mail):
[Deleted by OK. Civility may be an unclear concept, but I think the phrase "What a pathetic dishonest ass you are, Orin Kerr" counts as uncivil.]
11.10.2008 2:14am
OrinKerr:
Jay,

I am not a liar, actually. U.S. citizens and permanent resident aliens are protected from such powers by Ex Parte Milligan: those protections have been well-established for over a century. My argument does not extend to citizens: see my update in the new post. As best I can tell, Greenwald simply assumes that it is my position that such powers extend to U.S. citizens, but that is not my position.

Incidentally, please remember our comment policy: Civility is required. If you cannot be civil, you cannot comment here.
11.10.2008 2:20am
David M. Nieporent (www):
You're simply a liar. GG cited the post in which you argued just what he said you argued: http://volokh.com/posts/1181615410.shtml
Yes, but Glenn Greenwald -- whose posts most resemble not JBG's, but Justin Raimondo's -- is actually the one lying, as Orin makes a clear distinction in that post between citizens and non-citizens. Glenn repeatedly ignores, lies, or dissembles about that point.
11.10.2008 2:24am