April 09, 2007

posted by Daniel J. Solove

1. Orin doesn't "miss[] the larger issue." He's responding to a prof's assertion that he knows why he was placed on the no-fly list. If the post was about whether no-fly lists are generally good or bad, then yes, he would have missed the larger issue.

2. The "old fashioned" comment was a snarky response to one of the dumber comments on the site, not a general indictment of anecdotal evidence. If you read the rest of the comments thread, you might notice that Orin is genuinely interested in documentation supporting the notion that Bush critics have been placed on the list for being Bush critics. He's not shilling for the government so much as trying to get to the bottom of the story. The fact that the no-fly list is clandestine doesn't make unfounded complaints about it any less unfounded.

David Levine has a good article on trade secrets related to government activities that might be of interest. I am afraid of these black boxes, too.

As for Murphy's suspicions; this article suggests some basis for worrying about a politicized law enforcement system:

http://www.nytimes.com/2007/04/09/opinion/09mon1.html

"As Congress investigates the politicization of the United States attorney offices by the Bush administration, it should review the extraordinary events the other day in a federal courtroom in Wisconsin. The case involved Georgia Thompson, a state employee sent to prison on the flimsiest of corruption charges just as her boss, a Democrat, was fighting off a Republican challenger."

I believe judge Frank Easterbrook (no flaming liberal) was sufficiently alarmed to "rule from the bench" on this appeal.

More food for thought on the topic, from Jeff Rosen's article on neuroscience in law:

Stanford Law Prof. Hank "Greely has little doubt that predictive technologies will be enlisted in the war on terror — perhaps in radical ways. “Even with today’s knowledge, I think we can tell whether someone has a strong emotional reaction to seeing things, and I can certainly imagine a friend-versus-foe scanner. If you put everyone who reacts badly to an American flag in a concentration camp or Guantánamo, that
would be bad, but in an occupation situation, to mark someone down for further surveillance, that might be appropriate."

from [link]

I should think that simply being a professor at Princeton is ample reason for inclusion on a screening list, what with the general debasement of academic standards they've endured down there.

What "clerk in DE" said. (Go Delaware! -- have a burger at the Charcoal Pit for me sometime.)

More broadly, Murphy's point clearly wasn't a criticism of the No-Fly list, which of course is easily subject to criticism. Murphy's point was that the Bush Administration was harassing him for his speech, and my point was just that we don't actually know that to be true. In sum, I didn't "miss" the larger issue, as this larger issue wasn't actually relevant to the debate.

Finally, as DE clerk points out, my sentence about evidence was indeed a snarky response to a troll who it turned out had long been banned from the VC. It's hard to appreciate the context of my response without explaining what the commenter had said.

Orin,

The point I was criticizing you for is not for failing to attack the No Fly List. It is that without transparency, there simply is no way for anybody to prove that First Amendment activities would get one on the list. So Murphy certainly can't know if his claim is true. But without transparency, we can't really make any claims. So even if the government were putting people on the No Fly List for their speech, we'd have no way of proving this.

So you are certainly right to cast doubts on the Murphy story -- I don't believe it either -- but my point is that the secrecy of the program makes nearly any claim about what gets people on the list difficult to prove.

Is there evidence to prove that the No Fly List doesn't contain names that are there because of First Amendment activities? We don't have evidence for this either.

So when Murphy makes the claim and you shoot it down with skepticism, the default seems to be that First Amendment activities are not a factor in getting people on the No Fly List unless there's some evidence or proof of it. I'm just questioning this default position. The default should be that we have no idea -- First Amendment activities could indeed be a factor -- we really don't know.

My sense was that your baseline is one of trust of the government -- unless evidence is provided of wrongdoing or abuse, we should assume that the FBI is not placing people on the list because of First Amendment activities. My point was merely to say that in instances where the government isn't being transparent, we shouldn't assume such a baseline. Instead, we should assume a baseline of agnosticism.

If I am wrong in my sense of where you were coming from, then I apologize for misreading your post.

Dan,

I'm not sure why you think your position is inconsistent with what I said. You seem to be objecting to a "sense" that I have a "baseline of trust" in the government, and you object to the sense you think I have. But whether I have a baseline of trust in the government (relative to you, at least) seems irrelevant here.

From my perspective, at least, the only question here is whether the name "Walter Murphy" is on the No-Fly list because the Bush Administration is intentionally harassing Professor Murphy. My view is that we don't know; am I right that you agree with me about that? You might want to say that we don't know, but that in light of other objectives and values we should make a presumption that Murphy's claims are true. You're certainly welcome to take that position, but I'm really just interested in the narrower question of why the name "walter murphy" is on the list. Or is your point that it's somehow improper to ask only the narrower question?

Finally, I tend to think you're wrong that we can never have an idea as to why a particular name is on the list. First, we can get a sense of whether other people who criticize the Bush Administration have found their name on the list; the broader reality about who is ending up on the no-fly list can give us some clues as to what is happening. Second, if enough of a stink is raised, someone from TSA may leak the reason to the press; I believe that's what happened in Senator Kennedy's case.

Orin,

I agree that we don't know why Murphy is on the list.

I am not arguing that we should make a presumption that Murphy's claims are true.

It is not "improper" to ask only the narrower question of why Murphy is on the list. I just think that only asking this question misses another question that I think should be asked: Can the government prove to use that First Amendment activities are not being used to place people on the list?

On your last point, perhaps that might be a way to study the program -- look for patterns in everybody who has found his/her name on the list. On hoping that somebody will leak the information, I'm not sure that the hope will always be answered. Under my understanding of the list, the TSA doesn't really know what gets people on the list -- the FBI places people on the list for a variety of reasons known only to the FBI. The TSA might be able to explain that a particular passenger's name matches a name on the list, but it will probably not be able to explain why that particular name is on the list in the first place.

Dan,

I agree that there are a lot of interesting questions here. I suppose I'm comforted by Ryan Singel's view (posted today) that he has never come across an example of First Amendment activities being the cause for someone being on the list after reporting on the issue for four years. I would be interested to know if other reporters who cover the same issue agree; I would guess that their collective take on this question would be a pretty helpful guide to what's happening. Whatever is going on, I would guess that the fallout from Murphy's post ends up helping to draw attention to the question.

My co-blogger, Sujatha has a completely different suspiction - beyond free speech or criticism of the Bush administration. She wonders that since the original NO FLY list may have been compiled with the help of the MIA, could Professor Murphy have been confused with an IRA member?

Of course, we'll never know.