Earlier this week, I was listening to a debate on the BBC World Service on Britain’s new civil partnerships, and found myself nodding happily along at the nice Millian rhetoric trotted out by the spokesman for one of the gay rights groups there—good familiar classical liberal red meat about formal equality and social tolerance of self-regarding acts. But I also found myself wondering: Could moral progress in some sense help to undermine this kind of liberalism?

As political theorist Michael Sandel has pointed out, there are two ways you can defend (among other things) gay rights: The first is the liberal or formal way, by arguing that society (or at any rate, the law) need not concern itself with private morality or immorality, should maintain a scrupulous neutrality between different modes of life insofar as they don’t directly injure others. That sort of argument leaves open whether there is, in fact, anything more broadly wrong with gay relationships.

The other option is to offer a substantive or comprehensive argument: You can point out that the core values realized by heterosexual relationships are present in gay ones as well, and argue that they should not just be formally tolerated, but that there’s nothing morally bad about them. (Many people—such as our esteemed host—routinely make both sorts of arguments.)

Sandel’s concern is that the primacy of the first sort of argument in the public sphere gives short shrift to the second type. I find myself wondering whether a move toward agreement on questions of the second sort—which generational surveys suggest is happening, and which is in itself surely a good thing—won’t weaken the appeal of those nice Millian principles.

Liberalism was born of the anguish of Europe’s wars of religion—and by and by, what had begun as a détente of exhaustion came to be seen as a moral good in itself. But what happens when the big ticket injustices are, if not eradicated, then in retreat? In short: How much will we care about toleration and neutrality when we’re less worried that state power will be exercised in substantively wrong ways?

You can already see the drift to some extent in the ways the rights of women and racial minorities have been defended. In both cases, you initially saw the argument advanced in the classical liberal language of formal equality. Now at least some advocates of both causes have come to regard “formal equality” as a screen for white male privilege. (Recall Al Gore’s remarks about how opponents of affirmative action “use their color blind the way duck hunters use their duck blind.”) You see the potential for the same sort of drift in some defenses of civil liberties: Defenders of free expression would often rather invoke pyres outside libraries than make the case that even genuinely execrable speech deserves an opportunity to be heard, whether or not censorship would put us on a slippery slope to the suppression of speech we find substantively valuable.

That’s not—needless to say—an argument in favor of keeping some big substantive injustices around to remind us of the value of liberalism. But it is something to think about: Will we readily accept in droplets what we’ve refused to countenance in torrents?

—posted by Julian


Yesterday, I suggested that it might be difficult in this wacky, interconnected world to know which communications are really “international” ones. Apparently the NSA has the same trouble, and for something pretty close to the reason I hypothesized:

[In] at least one instance, someone using an international cellphone was thought to be outside the United States when in fact both people in the conversation were in the country. Officials, who spoke on condition of anonymity because the program remains classified, would not discuss the number of accidental intercepts, but the total is thought to represent a very small fraction of the total number of wiretaps that Mr. Bush has authorized without getting warrants.

—posted by Julian


Most famous, of course, is “never get into a land war in Mesopotamia.” But only slightly less well known is: “Never get into a Fourth Amendment argument with the guy who literally wrote the book on government seizure of electronic evidence.” Still, I want to take a quick look at Orin Kerr’s analysis at Volokh Conspiracy of the NSA eavesdropping program.

Kerr offers two arguments for why the program might pass Fourth Amendment muster. First, he suggests that wiretaps of communications between persons in the U.S. and interlocutors abroad might fall under the “border search” exception that permits the government to inspect, without a warrant, persons and packages entering or leaving the country. I have no idea whether the courts would rule as Kerr suggests—intuitively the primary border-search rationale of preventing contraband from entering the country doesn’t apply straightforwardly to communications surveillance, though, of course, there is such a thing as digital contraband. But the logic of the Fourth Circuit case Kerr cites certainly seems to leave that door open—hell, it stands in the doorframe beckoning—and the prospect that a court might rule this way is a little disturbing. In the physical world, crossing a border is a relatively clear-cut proposition—you don’t, as a rule, do it by accident, so you at least know when you’re going to be potentially subject to a search. But do you know where every packet of e-mail or VoIP conversation you exchange goes? I sure don’t. But if I send an e-mail to my aunt, who’s in New York for the holidays, there’s a pretty good chance that it makes a stopover on a server in Madrid somewhere. Online, our private communications are routinely crossing borders, at least sometimes without our knowledge. And never mind the “we’re at war here” jazz; the border-search rationale would apply any time.

Next, Kerr turns to a potential “national security” exemption, citing a case that denied the executive domestic warrantless surveillance powers, but explicitly refrained from ruling “on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.” Now, declining to deny a power is not the same thing as granting it, but leave that for the moment. A footnote in the same case observes:

No doubt there are cases where it will be difficult to distinguish between “domestic” and “foreign” unlawful activities directed against the Government of the United States where there is collaboration in varying degrees between domestic groups or organizations and agents or agencies of foreign powers. But this is not such a case.

But this, surely, is. And The New York Times‘ description of who was targeted leaves some doubt that the surveilled parties were all “agents of foreign powers”:

In addition to eavesdropping on those numbers [captured from terrorists’ cell phones] and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said.

We don’t know what the criteria were for “expanding” that “chain,” but it does begin to sound a bit like a massive game of Six Degrees of Qevin al-Baiken. Maybe evidence for some sort of connection to a “foreign power” in each case was sufficient that the targets all would’ve passed muster before a FISA court. But if so—if ther NSA wasn’t just lowering an electronic dragnet into the bitstream—then, as others have observed, it becomes mysterious why they wouldn’t just do that (at least retroactively, as FISA allows). Assume we think executive wiretaps of agents of foreign powers are per se reasonable. Don’t we still want some kind of oversight to ensure that those who’re eavesdropped upon are at least justifiably suspected of being such agents? Of course, if we add oversight, then (Catch 22), it’s not really an “executive” search anymore.

Now, fortunately (as Kerr observes), even if these arguments were to fly, we have statutory restrictions on wiretaps that go further than the Fourth Amendment might require. Still, at a time when the statues are in flux, it’d be nice to have a little constitutional double-bagging.

If you’re looking for views from people with actual qualifications to talk about this, by the by, Dan Solove has a good roundup of analysis.

—posted by Julian


I suppose we’ll have to wait until after the holidays for Andrew to weigh in on the morality of this phenomenon. Of course, it’s important to consider the case where we know—by direct apprehension of the Platonic form of truth—that aliens will destroy the Earth and everyone on it unless Barbie is microwaved. Also, the Barbie in question parks in handicapped spaces.

—posted by Julian


One of the things that had been bugging me about the recent pay-for-play kerfuffle surrounding Doug Bandow and Jack Abramoff (beyond, that is, the professional seppuku of a guy who’d struck me as generally likeable in our few interactions) was a post at The New Republic‘s blog by Franklin Foer, who says he’d investigated the Bandow/Abramoff connection for an article that appeared in the magazine last May. Says Foer:

I asked Bandow point blank about his relationship with Abramoff, and he denied any financial relationship. (When I brought the matter to the attention of CATO officals, they declined to pursue it.)

And Foer declined to pursue whether “Cato” is an acronym. But I’ll confess, the post made me uneasy. Full disclosure: I used to work at Cato; I like and respect the folks who run it, and was more than a little disturbed by the charge that they had turned a blind eye to a fairly serious charge of conflict of interest. Well, Executive VP David Boaz writes to say that they didn’t:

Frank’s memory is mistaken. Or maybe we never got back to him. But in fact, as soon as we heard the allegations, we investigated them. Apparently the answers [we got] were not entirely accurate. As soon as we did find out the reality, we acted.

That sounds like a pretty reasonable response under the circumstances; it sounds like they got scammed too. I’d hope (though probably shouldn’t expect) that this would limit the amount of this muck from this that splashes on their glass foyer.

—posted by Julian


An interesting observation over at Daily Kos about Attorney General Alberto Gonzales’ defense of the NSA eavesdropping program: On the one hand, Gonzales argues that Congress had already implicitly authorized such a program. On the other hand, he says the administration declined to seek explicit authorization because “we were advised that that was not likely to be—that was not something we could likely get.” So Congress had authorized it… but they wouldn’t authorize it. Presumably victims of false consciousness in the latter instance. This must have something to do with that general-will/will-of-all distinction I never quite grokked.

—posted by Julian


I listened to the president’s press conference this morning, and I’ll confess I’m still perplexed at precisely why the New York Times needed to hold its story about the NSA’s warrantless eavesdropping program (other than to provide a marketing tie-in for James Risen’s forthcoming book, after the G.I. Bush with kung-fu grip and detatchable Carnivore terminal fell through), or how its publication constituted a dire threat to national security. Bush suggested that the revalation was “helping the enemy,” but the analogy he offered in support of that contention seemed distinctly disanalogous.

Bush’s point of comparison was the disclosure that the U.S. had been tracking Osama bin Laden’s satellite phone—which was, self-evidently, news to him, since he subsequently stopped using it. But even those of us who, as of a few years ago, thought FISA had something to do with erectile dysfunction medicine are well aware that the government seeks to eavesdrop on suspected terrorists’ conversations—and that it can do so without a warrant for up to three days before applying for a retroactive secret warrant under the Foreign Intelligence Surveillance Act. So it’s a bit hard to understand the claim, unless we make use of Bush’s idiosyncratic definition of “helping the enemy” as “causing people to question me.”

—posted by Julian


First, let me second Ross in thanking Andrew for the invite to play shopping-mall Santa surrogates to his blogospheric St. Nick. We’ll try not to leave footprints on the sofa.

Since The Christmas Wars—like most solstice festivals—are ultimately about cyclical renewal and resurrection, I have no real qualms about just reiterating what I said last year around this time: The overarching “War on Christmas” is a bogus narrative cobbled together from a smattering of half-true anecdotes because there are a few activists for whom it’s convenient that people more broadly share the “siege mentality” Ross talks about.

There’s an old Michael O’Donoghue column in which he suggests that (courtesy of Judy Garland) there’s a nefarious principle loose in American culture: “The person in the most pain wins.” The religious right seems to have learned that lesson well enough from the left; if you want to mobilize a relatively moderate population, it helps to convince them they’re under attack. So, hark, the herald pundits sing the advent of a nefarious secularist assault on people of faith, like clockwork, starting about a month before Christmas each year. (Though like storefront Christmas displays whose debut creeps closer to Halloween each year, it may be starting progressively earlier.) You’ll notice the same framing contest in battles over gay rights: Gay couples need to be painted as “flaunting” their sexuality, or being “in our face,” or otherwise acting as aggressors.

Let me suggest as a final point, though, that there may be a connection between “the real de-Christianization of Christmas” via “the frenetic pace of modern life, and the crassifying tendencies of commerce,” which bothers Ross, and an insistence on a faith-saturated public sphere. It is utterly mysterious to me when people of faith exult that some sectarian symbol—a Ten Commandments momument or an invocation of “one nation under God” in a schoolchild’s morning fealty oath—survives judicial scrutiny as mere “ceremonial deism.” Isn’t that precisely an acknowledgement that, by a kind of inverted transubstantiation, those symbols have been stripped of their meaning? The problem with pushing to embed your favored symbols in the mass culture is that you cede control of them to the mass culture—which I rather doubt is what the activists would want, on reflection. Forgive them; they know not what they do.

—posted by Julian