Friday, August 18, 2006

A Hard-Right Question

Eugene Volokh says:
It seems to me that the proposition that Congressional judgments about the proper scope of surveillance (even surveillance aimed at catching foreign terrorists) prevail over Presidential judgments is hardly a "hard-left" view. If the Foreign Intelligence Surveillance Act prohibits the NSA program (my reading is that it does), the Authorization for the Use of Military Force doesn't implicitly authorize what FISA forbids (and it's at least quite plausible to say that it doesn't implicitly authorize it), and the Congress has the constitutional power to constrain the President this way (and again it's at least quite plausible to say that it has such a power), then the NSA program is illegal. And even if the program is nonetheless valuable for national security, there are perfectly sensible non-hard-left arguments for concluding that the rule of law should trump even national security concerns (especially if one believes, as I do, that the constraints on the program are statutory and can thus be removed, if necessary, simply by getting Congress to change the law).
Now, I know Professor Volokh is all lawyerly and stuff, but aren't there also plenty of "perfectly sensible non-hard-left arguments" against the NSA eavesdropping program that don't have anything to do with "the rule of law"?

For instance, one of my objections to the program is that you shouldn't trust the Executive with the power to monitor the correspondence of citizens without at least moderately adversarial oversight by another entity. This is because you can't trust the Executive to autonomously and reliably hold its own actions to the standards that must be met to justify governmental invasion of an individual's privacy. Is this a "hard-left" position? It seems to me that it's actually a very common view, historically. What, exactly, would be a "hard-left" position on this issue?

Moreover, it's not just the case that the privacy argument is an objection in addition to the rule of law argument; one of the purposes of the law is precisely to protect the right to privacy of the individual. The rule of law argument will, in all cases, depend ultimately on additional, less legal, more strictly ethical, arguments about the actual impact of the laws in question. I'm therefore wary of the implication (even if made only by omission) that those other, more normative arguments are necessarily "hard-left".

Really, I think what we're really dealing with is a hard-right question, namely, Should the President be allowed to spy on American citizens without a warrant?


Tommaso Sciortino said...

Well it's no mystery that a guy with hard-right positions on torture would want to confuse the issue this way.

I think Volokh and possibly Instapundit are the two "libertarians" which get my blood boiling the most. Sure, they'll protect you against Universal Health Care, but let the President start illegally wiretapping and either their attention span shrinks to that of a five year old's or they become a dowdy pedantic out to make sure nobody employes unseemly hyperbole.

Grr. Ok. I'm done with the ad hominem attacks. I guess maybe I'm just saying that I don't have too much respect for Volokh so I don't really care when he tries to redefine the political spectrum to suit his particular ideological bent.

Paul said...

I can't say I disagree about his ideological consistency, but the reason I read him, while I don't read Glenn Reynolds, is that Volokh at least lays out a certain amount of argumentation for any given position. He's smug, but not so smug that he doesn't think he has to actually make a case for his preferred position.

That and I like his occasional take-downs of pointless grammatical rules.