On Greenwald and Kerr and the Chicanery of the Intellectual Right

Glenn Greenwald has engaged in a timely, online dialogue with Professor Orin Kerr on the Bush administration's dismal human rights record - that is dismal, by U.S. standards, anyways.

Professor Kerr is a contributor at leading conservative U.S. law blog, the Volokh Conspiracy.

In an initial post and update that are well worth reading in entirety, Greenwald states:

George Washington University Law Professor Orin Kerr — a leading apologist for many (though not all) of the lawless and radical Bush policies of the last eight years — last night smugly predicted that Democrats who spent the last eight years opposing executive power expansions and an oversight-free Presidency will now reverse positions, while Republicans who have been vehement advocates of a strong executive and opposed to meaningful Congressional oversight will do the same.

....

... UPDATE" Orin Kerr, who specializes in using professorial and self-consciously cautious language to endorse radical surveillance policies, feigns shock that I characterized his positions the way I did, and asks: "does anyone know what 'lawless and radical' policies I apparently served as an apologist for?" Kerr could start here(endorsing the Protect America Act as "relatively well done" and proclaiming that "the basic structure seems pretty good" -- the same law which Yale Law Professor Jack Balkin denounced as a "cowardly contribution[] to this slow-motion destruction of our constitutional system").

... The fact that someone uses professorial and caveat-filled language when defending indecent policies like these may make them civil, but not decent. Ask John Yoo (I'm not equating Yoo and Kerr)

Kerr responds at Volokh:

... it seems that Greenwald's case really boils down to me weighing civil liberties and public safety interests differently than himself, the ACLU, and Jack Balkin (the sources he uses as reference points in his post). If that's the real argument, then it is certainly true that we have differences. In the case of Al Marri, for example, I do think it's pretty odd to say that the executive has no authority beyond the usual criminal detention powers to detain a non-citizen al Qaeda terrorist who enters the U.S. to execute a terrorist attack. Similarly, in the case of the FISA statutes, I do think that it makes sense to allow intelligence agencies to monitor foreigners located outside the United States with a large-scale FISA order rather than individualized warrants. Certainly there is room for disagreement on these issues: My view reflects my own sense of appropriate responses to the terrorist threat, and different people will disagree on that threat. (emphasis added).

"Different people will disagree?"

Well, fortunately, the American people have now spoken, and it is clear which side they have come down upon.

I don't follow Professor Kerr's work intimately enough to comment on it beyond the posts above.

I largely gave up on religiously reading Volokh some time ago, in view of its bold contentions regarding the supposed absence of legal protection for freedom of expression in Canada - see Canada Restricts Freedom of Speech: Volokh (but I suppose different people will disagree on that issue, too).

(Mr. Greenwald actually shared the Volokh point of view at that time, as I recall it - but at least he is consistent in his relentless advocacy for all constitutional human rights protections, in obvious contrast to his cherry-picking conservative counterparts)

My comments below, thus, are more broadly stated, and not directed specifically at the good Professor Kerr's writings.

I continue to ponder the degree and kind of accountability that must be demanded of the soon-to-be-former Bush administration for its reckless disregard of basic human rights in the guise of the marketing operation formerly known as the War on Terror.

I have great concern that if the new Obama administration pursues such accountability via congressional investigations or criminal law processes, it will tie itself, Congress and the nation in all-too-familiar knots. Beyond that, by doing so it may simply re-energize the partisan warfare that has so embarrassingly eroded the effective working of the federal government since the Clinton impeachment fiasco.

The international standing of the United States, however, will not be restored by an Obama America that turns a blind eye to the Bush administration's legacy of torture, unlawful detention and rendition, domestic and international invasion of privacy and ongoing manipulation of the civil and military judicial systems.

With due respect to Professor Kerr, simply "agreeing to disagree" on the Bush legacy of human rights abuses will not be adequate.

In the absence of an unambiguous and total rejection by American lawmakers and Courts of the outrages that have blackened America's standing among its greatest allies, the world will properly be entitled to assume that not much has really changed, at all.

Professor Kerr intimates that in Obama's America, it will be business as usual, and the changing sides will simply change sides.

It does not appear to me that in reaching this conclusion, Professor Kerr has been watching President-elect Obama closely enough.

I do not anticipate that Mr. Obama will seek to restore America's place as a shining beacon by way of an international charm offensive, alone. America is beginning to wake up to the reality that among his many gifts, their next President has considerable skill in walking the walk.

One of his many challenges, however, will be to establish a process for review of the sins of the past that will not limit the country's ability to move forward toward the promise of a better tomorrow.

I anticipate much in the way of attempted pre-emptive defense by the outgoing President's soon-to-be-unleashed pardon machine. He will resist all subsequent efforts to impose accountability upon his disgraced, departing administration.

I have considerable faith that President-elect Obama thoroughly understands that America's need to make a clean break from the recent past will require more than lip service or yet another whitewashing commission.

America's human rights abuses must be acknowledged. Its perpetrators must be brought to justice.

Human rights and torture are not issues where we can all just agree to disagree - not if America aspires to again be a moral leader of the free world.

The conservative movement has enjoyed much success in denigrating those who care most deeply about human liberty. It has expended much effort to tame the ACLU and civil libertarians, generally, through a relentless, long-term campaign of mockery and ridicule.

The mood of the electorate has changed, however.

"Liberal" is no longer a dirty word in America - particularly among the young.

Conservative intellectuals, and in particular, certain outspoken right-wing U.S. lawyers, might be well advised to engage in their own genuine, self-conscious reflections regarding the views they have urged over the last seven years. Great damage has been done to the country they love in direct reliance on, and with political cover of, their flawed justifications and unbalanced, tenuous reasoning.

At very least, it is high time that they deeply consider their own intellectual and moral, culpability in America's free-fall from international grace.

America has ultimately rejected them and their chicanery.

And for that, God bless America.

........

UPDATE:

An anonymous poster claiming to be Professor Kerr has responded in a comment to this post:

Mr. Wise, If you do get a chance to read my blog posts, I'm confident you'll find that they are nothing like what you are fearing -- and nothing like what Glenn Greenwald is claiming. That's the difficulty with Greenwald's position: He has the wrong guy. Or so it seems to me; I recommend the comment thread at my response to see what readers think.

Orin Kerr

I, too, have responded, as follows:

Professor Kerr:

I appreciate your visit and response. Given your comment that you are the "wrong guy," I am wondering, if you have any thoughts as to who the "right guy" might be?

Perhaps, if you could share those views, there will still be room for hope that you and Mr. Greenwald (and I) can ultimately find some common ground, after all.

Garry J. Wise

Update:

Professor Kerr's colleague at Volokh, Eric Posner, picks up the apologist torch and runs with it. Apparently President Bush was just following President Clinton's lead.

See: Will the Obama administration repudiate Bush-era legal opinions?

- Garry J. Wise, Toronto

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