More on the Murphy allegations of speech-based placement on no-fly list, and on reactions to questio

Wed Apr 11 07:32:23 PDT 2007

I am about to post the following on Balkinization--with some edits.  

	The Wall Street Journal apparently believes “what happened” to Professor Murphy “was out of the ordinary only inasmuch as the airline clerk . . . made a sensational and untrue claim.”  They know so, because “as luck would have it” (be prepared--there are going to be a lot of remarkable coincidences in what follows) an administrator of the Transportation Security Administration just happened to be visiting the Wall Street Journal Office yesterday.  Given that such officials are nonpartisan and have never been known to exaggerate in any respect, unlike named chairs at Princeton University, we now have a totally accurate account of the no-fly affair.

	Apparently Murphy was a “selectee,” chosen for reasons “most of which are not publicly disclosed,” but include such potentially innocent matters as “holding a one-way ticket and purchasing a ticket in cash.”  Of course, the first was not true in the case of Professor Murphy and I doubt the second was either.  But other undisclosed reasons might exist.  Maybe the government routinely searches people who write books for Johns Hopkins University Press or, as I fervently hope, criticize my friend Gerald Rosenberg.   But clearly, we are informed, the search of Murphy was just another coincidence.  As the Wall Street Journal explains, “this has happened to us on numerous occasions.”  Just not, apparently, to the numerous persons who had read the original post.

	Besides, the Journal informs us, “federal terrorist watch lists are compiled . . . by career professionals at the FBI . . . who . . . would balk at any effort to list people for political reasons.”  And as we all know, the FBI is absolutely impervious to political influence.  For those who think maybe, just maybe, the FBI some of the time has investigated people for political reasons, consider that the Journal does not spell out which FBI is doing the watch list.  Perhaps FBI in this case stands for “Friends of Bjorn Ipswich.”  It’s just a coincidence that this group has the same initials as the Federal Bureau of Investigation.  And presumably, there is every reason to believe the Transportation Security Administration is as nonpartisan as the FBI.

	Another unfortunate coincidence took place when the clerk informed Murphy that participating in a peace rally might explain why he was a selectee.  As the Journal points out “airline clerks have no way of knowing why a passenger is a selectee.”  A social scientists might think that even if airline clerks have no official knowledge of the criteria, they regularly observe and chat with the people who are selectees and might make some inferences.  If a remarkable number of redheads are taken out of line, some reason exists for thinking that being a redhead is part of the criteria.  But I think there is a better explanation, one that supports the Journal’s account.  When I am subject to a random search at check-in, I am told this is a random search, that this is nothing special about me.  I feel so insignificant.  The Airline in question probably has a policy of making people feel special about random searches by telling people that they are politically important.  Oh, and when my luggage is randomly searched, they usually let me watch.  But the secrecy, no doubt, made Professor Murphy feel really important.

	The last coincidence occurred when Professor Murphy’s luggage was lost.  Of course, he was told that his luggage would be ransacked (and presumably a clerk would know whether in practice luggage is merely searched or ransacked).  Indeed, the luggage would be ransacked or searched even though this seemed clearly a case of mistaken identity.  Nevertheless, the government thought playing things safe best.  There are, after all, many Walter Murphy’s in the world.  And given his reputation, a great many of us, myself included, have been doing failed Walter Murphy impressions for years.  Perhaps this was a fraud, cashing in on Professor Murphy’s academic reputation while the real Professor Murphy is tied up in a basement somewhere.  And distinguishing one Walter Murphy from another is difficult.  No doubt, the FBI (remember we are talking about “Friends of Bjorn Ipswich” here) merely has “Walter Murphy” on some watch list and not, Walter Murphy, a twenty-two year old, six-foot-four, redhead.

	I do not know James Taranto, who wrote the Wall Street Journal piece, or Kip Hawley, the administrator in question.  I have every reason to believe that Mr. Hawley, in particular, is making a good faith effort to place the Transportation Security Agency in the best possible light.  But Professor Murphy ought not be depicted as “so blinded by hatred” to be “gullible enough to believe anything.”  Walter Murphy is not a political ideologue.  The last message I recall him sending on the lawcourts listserv was a strong endorsement of Samuel Alito.  Perhaps he has lost his mind or his judgment has gone horribly awry.  But that would strike me as the least likely coincidence in the above account.

>>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 04/11/07 10:15 AM >>>
	From my coblogger Orin Kerr, who has been posting on the subject
on our blog.

	Eugene

-----Original Message-----
From: volokh-bounces at lists.powerblogs.com 
[mailto:volokh-bounces at lists.powerblogs.com] On Behalf Of
notify at powerblogs.com 
Sent: Tuesday, April 10, 2007 10:53 PM
To: volokh at lists.powerblogs.com 
Subject: [Volokh] Orin Kerr: Lydon and Murphy on the No-Fly List:

Posted by Orin Kerr:
Lydon and Murphy on the No-Fly List:
http://volokh.com/archives/archive_2007_04_08-2007_04_14.shtml#117627076 
2

   Over at [1]Open Source, a Public Radio International program,
   Christopher Lydon has a very sympathetic interview with Walter Murphy
   about why he has been personally targeted as an Enemy of the State by
   the Bush Administration. Murphy contends that his treatment at the
   Newark Airport is " a Constitutional Crisis writ small, an attack on
   an individual who dares to point out" that the Bush Administration's
   view of Executive power is dangerous and troubling. ([2]Here's the
   video of the speech that Murphy believes led the Administration to
   target him.)
     Much to my surprise, I am personally named and criticized by Lydon
   as a blogger who "wants to make excuses for the government" by
   questioning the story; Lydon states that it is just "fascinating"
that
   I would not accept Murphy's guesses as truth. Unfortunately, Lydon
   doesn't explain why he thinks questioning allegations of wrongdoing
   reveals a wish to "make excuses for the government," as compared to a
   wish to figure out what actually happened. Anyway, the mention of me
   is about a third the way through the program.
     The guest following Murphy is a Washington Post staff writer, Karen
   DeYoung, who points out a bunch of likely alternative explanations
for
   Murphy's experience. She suggests that Murphy was probably just on
the
   "selectee" list, not the No-Fly list, both because he was allowed to
   board the flight and because he wasn't even questioned on the return
   flight. Interesting -- who knew that a Washington Post reporter would
   "want to make excuses" for the Bush Administration, too?
     Finally, Ryan Singel also interviewed Murphy recently; you can find
   his extensive interview [3]here.

References

   1. http://www.radioopensource.org/on-the-watch-list 
   2.
http://web.princeton.edu/sites/jmadison/events/lectures/video/Murphy.htm 
   3. http://blog.wired.com/27bstroke6/2007/04/professor_bashi.html 

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