More on the Murphy allegations of speech-based placementon
no-fly list, and on reactions to questio
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Apr 11 07:52:26 PDT 2007
I appreciate Mark's post, but I wonder whether he might comment
on Murphy's not having been detained on the flight back home. That
sounded to me like pretty strong evidence that he was *not* on a no-fly
list (I reserve judgment on whether he was on a lose-their-luggage
list), or even a constant-close-scrutiny list (obviously he wasn't on a
literal no-fly list because he did fly, but "no-fly list" has sometimes
been used to refer to such constant-close-scrutiny lists), but was
rather selected on one flight but not other flights -- quite consistent
with random selection, but not with being on a watch list. Or am I
mistaken?
Eugene
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
> Sent: Wednesday, April 11, 2007 7:32 AM
> To: conlawprof at lists.ucla.edu
> Subject: Re: More on the Murphy allegations of speech-based
> placementon no-fly list, and on reactions to questio
>
> 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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