internet Train Wreck: Selected Comments from a 197-Comment Metathread on a 503-Comment Thread About Henry Farrell's Claim That Glenn Greenwald Is Being Unfair to Orin Kerr...
As best as I can see, law professor Orin Kerr says that Al-Haramein was illegally spied upon as part of an NSA surveillance program which might well not be illegal--that is, under which it might well have been legal for the NSA to spy upon Al-Haramein in the way that they did:
What Al-Haramain Says, And What It Doesn’t Say: The New York Times reports on Judge Walker’s new decision.... "A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal.... Judge Vaughn R. Walker ruled that the government had violated a 1978 federal statute requiring court approval for domestic surveillance when it intercepted phone calls of Al Haramain...." The Obama Administration wasn’t arguing that the surveillance program was lawful. As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case.... After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief.... [T]he plaintiffs prevailed in their legal claim that they were illegally subject to surveillance.... [T]he Bush Administration’s arguments were quite weak. But the... decision today wasn’t actually about the lawfulness of the warrantless surveillance program.... Judge Walker rejected a broad view of the states secrets privilege because he though it would not give the government enough of an incentive to follow the law. He did not reject the position that the Government was free to ignore the law, as that was not a position either side was arguing...
Then there is a claim by Henry Farrell that Glenn Greenwald is being unfair to Orin Kerr, which leads to a 503-comment comment thread on Crooked Timber which I dare not read in its entirety. But the thread does contain:
Orin Kerr:
Imagine I sue you, saying you are a space alien who stole my soul and that I am entitled to $100. You decide not to show up to defend the charge, and the judge enters a judgment in my favor. Did the judge rule that you are a space alien who stole my soul? I would think the answer is no. Do you disagree? As an aside, I am kind of puzzled as to why some are so worked up about whether a judge has said the TSP was illegal. We know a lot more about the law here than the judges, and we all agree it’s illegal. Why does it matter whether Judge Walker happens to agree? The program was illegal, and it was illegal regardless of whether a judge says it’s legal, says it’s illegal, or doesn’t answer the question.
LizardBreath:
You have to get very specific about the question you’re asking to be able to say that the judge didn’t rule. If you ask “Did the judge rule that the surveillance was unlawful”, the clear answer is yes. The judge looked at the motion, and decided that the evidence and arguments were sufficient to rule in favor of the movants. If you spell out a possible argument that the Justice Department might have made in defense of the surveillance, and ask “Did the judge rule that that specific argument was incorrect?” you can get a no answer. But the question you ask has to be exactly that specific—there really was a ruling on the legality of the program, and the fact that the DOJ didn’t raise its possible defenses doesn’t make that not a ruling.
Orin Kerr:
Lizard Breadth,
You’re playing lawyerly games here to make a simple issue seem complicated. I’m asking a simple and direct question: Did the judge reject the Bush Administration’s views? That’s the issue. The proper answer is “no, he never ruled on them because they were not argued.”
LizardBreath:
But you never asked that specific question before. The question has been “Did the judge rule that the surveillance was unlawful?” And he did. Full stop... he did rule on the legality of the program. If you had originally posted something along the lines of “Judge Walker’s ruling on the legality of the program is made less weighty (or less convincing) by the fact that the DOJ failed to put forth arguments on that point”, you’d be getting much less flak. What you did say; “As a result, the decision doesn’t rule that the program was unlawful.” is straightforwardly false.... Orin, part of what’s so exasperating about your position is... [i]f I were going to restate the argument I think you’re making, it’d come out something like: “Judge Walker’s ruling that the surveillance program was unlawful shouldn’t be thought of as a reasoned rejection of the Bush Administration’s arguments in favor of the legality of the surveillance program, because the DOJ tactically chose not to make those arguments before Judge Walker.” And that’d be arguable. But there’s no sense in which it’s “technical[ly]” true that the “decision doesn’t rule that the program was unlawful...”
Orin Kerr:
LizardBreadth,
Yes, that is my argument: That’s what my post and this thread was about, I have thought.... It seems to me that we had a simple misunderstanding about my argument. Sorry I wasn’t clearer. As for the interesting consequences that followed from my argument, now that it’s understood, I don’t think there are any, which is why I said repeatedly that it was just a technical objection. But then that brings us to the main point, I think: This is a minor misunderstanding about a technical issue, not a battle between the forces of good and the forces of evil.
Robert Halford:
I have no idea why I’m getting into this mess, but I can’t, for the life of me, figure out why Orin Kerr, who is not an idiot, won’t admit that his original post on the Volokh Conspiracy was clearly and obviously wrong, and wrong in a way that is obvious to any competent lawyer. Here is what he said:
As a result, the decision doesn’t rule that the program was unlawful. Rather, the Obama Administration was just arguing that Judge Walker couldn’t reach the merits of the case because of the state secrets privilege. After Judge Walker rejected the state secrets privilege claim, the case was over: DOJ not having argued that warrantless monitoring was lawful, Walker had no choice but to grant relief to the plaintiffs on their claim.
That was just wrong. Not arguably wrong, not something that could have been phrased better, not a minor ambiguity—wrong. Judge Walker’s decision very clearly and explicitly did find that the program was “unlawful.” He had to, in order to issue his judgment. Moreover, the case was not “over” once the state secrets privilege claim was rejected. Those are two legal claims that are incorrect as a matter of law. The plaintiffs had to put on a prima facie case that the program was unlawful, and Judge Walker (who, by the way, is not a judge to take this kind of thing lightly) had to accept the argument. I’m not saying anything other people haven’t said in this thread already, but it is completely baffling why Kerr won’t just admit that he is wrong on this point and move on. Just as a matter of rhetoric, it would make his subsequent points a lot more persuasive.
Sometimes there are clear questions of law, and sometimes lawyers get them wrong, particularly in blog posts. No big deal. Just stand up and admit it.
(Kerr’s subsequent legal musings aren’t wrong, exactly, but seem to me to be wantonly confusing issue preclusion (collateral estoppel) with claim preclusion (res judicata). There is a final, binding, and preclusive ruling that the program was unlawful, and that claim has been resolved against the government. That’s claim preclusion. But since specific affirmative defenses were not litigated by the government at trial, issue preclusion may not attach in subsequent cases against the government, though that question may be somewhat complicated).
And then there is in response to that a 197-comment metathread on the 503-comment Crooked Timber thread about Henry Farrell's claim that Glenn Greenwald is being unfair to Orin Kerr started by Ben's:
Ben: "Prayers for relief: Reading the Greenwald v. Kerr thread on CT is painful, true, but even more than the interventions of LB and Halford, the phrase "facial challenge" helps make it bearable."
This comment thread I did read, and I will now excerpt the highlights:
I should say that not everything Kerr says in the thread is wrong.... A large part of what made Kerr so irritating was that he was largely saying things that were true but inapplicable, or that depended on an equivocal use of language.... Mmm. The 'what, you still don't agree with me?' routine grows old quickly. Halford was on fire -- very clear and cogent.... The funny thing is that there were reasonably good arguments for the ruling not being a terribly big deal, if that's what he wanted to argue -- they just couldn't have been couched as a 'technical correction' to the NY Times.
Posted by: LizardBreath....
Thanks guys. I totally agree with 1, by the way -- if he'd just been willing to say something like "yeah, sorry, I was a bit imprecise in my original post, I just meant that this ruling won't keep the government from raising certain Bush-era arguments in other cases" it would have been a-ok with me. Mostly his stubborness, tone and shady argumentative tactics and declarations of victory drove me crazy, plus his completely ignoring LBs points for like 200 comments, plus the fact that the ostensible point of the post was to celebrate the fair-mindedness of reasonable conservative Orin Kerr. The style was totally law-professory, as Will says. F. Labs had a line (from my lurking days) to the effect of "Has any profession suffered a greater loss of prestige due to the rise of the Internet than law professors?". Sounds about right to me.
Posted by: Robert Halford....
Greenwald was oddly off in some respects. This is just a guess (given that I really have no clue about the merits of some aspects of the argument), but I got the sense that Kerr goaded him into going further than the facts justified. LB and Halford were more effective advocates for Greenwald's position than Greenwald was.
Posted by: politicalfootball....
LB and Halford were truly inspiring. As Megan said, supra, the capacity for plain English made them shine. Sadly, I think there are still those who believe that if you read something you can't understand, the writer must be smarter than you.
Posted by: Di Kotimy....
I also enjoyed LB and Halford. And Kerr didn't take near enough abuse for the space alien thing: does he not know that you'd have to prove the extent of your damages to get a default judgment? Of course he doesn't -- in the places he's been, people don't have to mess with trivial details like that. I also don't think it's trivial to say that if FISA doesn't apply, the surveillance isn't illegal. And if your prima facie argument that FISA applies is -- look they say this thing is OK because of x.y,z, but these arguments are full of crap because of a,b,c -- then the judge saying you've made out a prima facie argument that the statute applies clearly reflects on x, y, and z. Especially if the judge has already ruled on x,y, and z as applied in similar but not identical circumstances.
Posted by: CharleyCarp....
Also -- and this isn't really a problem with what what Kerr actually said, but it was perhaps one implication of his overall message -- it's a little weird to say "Judge Walker's opinion didn't matter that much because he didn't address the really horribly stupid legal arguments that even the Bush Administration was too embarassed to argue in front of any actual judge," when Walker did address, and reject, the somewhat more plausible (albeit procedural) arguments the Obama administration was using to keep people harmed by the warantless telephone surveillance program out of court. That's a pretty big deal.
Posted by: Robert Halford....
47 -- I think you can fairly say that because Judge Walker did not address whether space aliens can or did confer on the NSA the authority to conduct unconstitutional surveillance, Prof. Kerr would argue that the government is free to present that argument in future cases.
Posted by: CharleyCarp....
Having just now read all 503 comments in that awful thread, I'm having a very difficult time understanding the psychological motivations of one Professor Orin S. Kerr. He's obviously very intelligent. He doesn't appear to be trolling, exactly--I think he believes he's arguing in good faith. I could be wrong about that, I guess, but what would be the motive? And the taunting about the case law was especially childish. I don't think it's as simple as 25. But I'm really disturbed by this, much more than I'd care to be. I want to know what's going on inside his head, and I'm afraid it's going to eat at me until I can come up with some plausible explanation. Only sort-of related, it takes quite a bit of, um... bravado?, to write, in the very same comment, both "I think torture is horrible, evil, terrible, bad, wrong, and awful" and "I say we waterboard". I know the second statement was offered in response to a hypothetical, but gosh, Professor Kerr, I don't think you're using all those adjectives in quite the ordinary way.
Posted by: Brock Landers....
One commits to a worldview: the government needs broad power to protect us from terrorists, and I am a smart rational objective person, unlike most people who are bomb-throwing partisans. Also, I am fundamentally right about things and so if I am caught in an error it must by definition be minor and technical, and my seemingly bizarre decision to turn attention on irrelevant and ridiculous arguments actually reveals my commitment to the most important truths.... [I]t takes quite a bit of, um... bravado?, to write, in the very same comment, both "I think torture is horrible, evil, terrible, bad, wrong, and awful" and "I say we waterboard". I don't know which astonished me more: the fact that he did what you say, or the fact that he brought up that specific hypothetical on Crooked Timber of all places. Talk about needing to RTFA!
Posted by: Josh....
As far as what Kerr was thinking, I think he must just be stuck in some kind of law professorial mode: You must always back your students down and assert dominance over them, and you can always make things more complex until they can't follow you, then declare victory. Kerr's most insanely annoying - yet most revealing - comment in that whole thread was his 498: "Those are some very poor grounds on which to try to distinguish my cases, I think. But rather than focus on my cases, lets focus on yours. What cases do you rely on?" The first sentence asserts his right to judge LB's argument without having to justify his judgment; and the second sentence asserts that only he will decide what's under discussion, and that he rules his own possible flaws out of bounds. Only someone totally corrupted by being accustomed to getting the dominant position and the last word would be butt-dumb enough to try that in an internet discussion where you actually have to persuade people in order to win, not just display your dominance. Of course, Kerr's approach can work in a classroom setting, where you're officially in charge and all the students have to be submissive, but in an open discussion of equals, it just makes you look like a douchebag.
Posted by: freight train....
Bloody hell, that CT thread went to 500 comments? I found the original post and first ten-twenty comments or so already annoying enough to make me lose the will to live. 51, Brock: surely his motivations aren't that diffcult: assh--- rightwinger finally encounters an audience that doesn't reinforce his worldview, has trouble adjusting? He certainly has the mindset down pat: "if you make a tiny mistake I've won. If my entire argument has been invalidated but I can think of an even worse one you haven't taken the time to invalidate yet, I've also won".
Posted by: Martin Wisse....
Skimming the CT thread, did it really end up with Kerr talking about a ticking time bomb hypothetical? Seriously? As I said before, these posts about VC have that olde-timey feeling to them; I'm glad Henry responded with the appropriate linkage.
Posted by: fake accent....
LB, how you managed to maintain a god-humored tone throughout that thread is beyond my understanding.... She seems genuinely to enjoy exchanges of the sort that would have me whimpering under the bed within five minutes. I'm bad at confrontation, even online.
Posted by: Jackmormon....
Henry thinks of Kerr as a conservative honest broker -- sure, not with politics Henry believes in, but honest and truthful on matters within his legal expertise, and mostly devoted to giving expert legal opinion rather than selling a political line. Start from the assumption that Kerr values that reputation, and wants to keep it, but also wants to use it to advance Republican political goals. One way for him to do that is, with respect to all the Bush Administration insane legal positions, for him to say that he disagrees with the crazy position (so sane people will think well of him, and think he's willing to speak up against Republican interests), but to couch the legal disagreements as difficult, technical legal issues over which reasonable people can disagree, and consistently claim that people like Greenwald attacking the Bush Administration legal positions are ignorant or dishonest on technical points of the law. He supports the people advocating crazy positions by describing them as people he has a reasonable, technical disagreement with, he cuts down the opposition by saying that although he agrees with them on the fundamental issues, they're all personally incompetent and dishonest, and he bolsters everything he's saying because it all looks like admissions against his own interest.
Posted by: LizardBreath....
98: Yeah, I called the initial post Greenwald was griping about dishonest to Kerr's "face" over at CT, because I can't see any honest reason to either say what he did, or not reformulate it to something defensible when people reacted to it. That much I'm confident about. Speculation on exactly what's driving Kerr, on the other hand -- I find my theory convincing, but I'm not a telepath, and it certainly involves a certain amount of double-double-cross-type complexity.... Kerr reminds me of Justice Kennedy. Concurring in the result the crazies come up with. I thought his behavior was pretty minor league in the thread, but really not that far out of the mainstream for internet discourse, and certainly not out of the mainstream for VC comment thread discourse. Not what I expected from a man in his position, but then I've certainly posted a bunch of stuff all over the place that shouldn't be expected from a man in my position either. The comment that surprised me, and led me to downgrade him in my mind, was that no one respects both GG and OK. And I guess he's so used to Anderson being the voice of reason that his coming to agree with OK was more or less proof that now everyone agreed with him. An interesting tell, I thought.
Posted by: CharleyCarp....
I was drawing a blank on Anderson -- I should probably recognize him from other blogcomments, but that's the downside of a nice, dignified, realname kind of name. Generally seemed very reasonable in the thread, although I think his final agreement with Kerr was a result of allowing Kerr to move the goalposts to collateral estoppel.
Posted by: LizardBreath....
What's really remarkable is that there was a world, not that long ago, in which John Paul Stevens was a politically connected Republican. I feel like I know that world existed, but have a hard time really imagining it. As far as Kerr goes, I think his underlying anxiety was "I am someone who teaches law but doesn't really know much about lawyering.". Not uncommon among law profs.
Posted by: Robert Halford....
It's worth pointing out that although Kerr is distinguished in his field (he's the latest editor added to the LaFave treatises, which (a) is a pretty impressive credential and (b) means he does work with actual case law), that field is criminal procedure, not civil procedure, and what he got stuck on in the CT thread was a civil procedure issue. It's a very different world. To 78, I think that if Kerr had engaged in any kind of of rational consideration about how to optimize his reputational position with regard to the comments thread, he'd have stayed the heck out of it, or at most limited himself to a quick "thanks, Henry, I know we don't agree on the merits of a lot of things but I appreciate the words of support." I think what actually happened is that he got stuck in a flamewar for not-fully-rational reasons, which has (ahem) happened to the best of us. I don't think he covered himself in glory once that happened. I only made it to about comment 300 of the thread myself, but it doesn't sound like there was a lot of glory after that either. (Quasi-disclosure: I know Kerr and have worked with him professionally. He's not a bad guy to have a beer with, and I don't even like beer. On the other hand, I idolize LB, despite never having met her. So clearly I'm qualified as a neutral here.)
Posted by: widget....
Kagan went to my high school, eleven years before I did. Not that that's enough reason to support her.
Posted by: LizardBreath....
Paula Abdul went to my high school, a few years before I did. Reason enough for me.... You wouldn't appoint Paula Abdul to Supreme Court first? She has lots of experience being on a judging panel, and she went to my high school.
Posted by: Megan
