More on the Murphy allegations of speech-basedplacementonno-fly list, and on reactions to questio

matthewhpolsci at aol.com matthewhpolsci at aol.com
Wed Apr 11 13:22:38 PDT 2007


As a student of public administration, it has struck me as pertinent to try to determine what the state of knowledge is as to normal practice.

In that search, I have been referred indirectly to the work one Professor Solove at George Washington University.  In addition I have been referred to 115 Yale LJ 2148.
 
On this list, I offer that for what it is worth.  I would be obliged for any detailed comment that might be offered as to the intellectual or professional credibility of this work.
 
It is disappointing to find discussion turning into something like ad hominem attacks on Professor Walter Murphy.  Cards on the table.  Professor Murphy is a colleague.  We have been on personally friendly terms for more than 30 years.  But he had my respect, on the basis of his published work, long before I met him.  He has an intellectual record and a public record that can be evaluated.   Might those who jeer at him reconsider whether doing so (a) enhances their intellectual credibility or (b) helps us better understand the state of affairs since 9/11?
 
The question still remains as to whether the right to travel is being surrendered for the arguably 325, 000 persons on no fly lists.  (115 Yale LJ 2148)  Is the argument being made on this constitutional law professors list that, "too bad, it has to be done"?  Administration, in my opinion, is the core governmental process and the empirical validity of constitutional government is in what a society deems it necessary to permit to be done administratively.


Matthew Holden, Jr.
Henry L. and Grace M. Doherty Professor Emeritus of Politics, University of Virginia

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-----Original Message-----
From: davidebernstein at aol.com
To: mgraber at gvpt.umd.edu; conlawprof at lists.ucla.edu
Sent: Wed, 11 Apr 2007 2:32 PM
Subject: RE: More on the Murphy allegations of speech-basedplacementonno-fly list, and on reactions to questio


If you follow Orin Kerr's commentary at Volokh.com, you will find that Prof.
Murphy IS NOT in the best position to determine anything, because he has a
grandiose sense of his own importance, and, as Orin writes, his additional
commentary on the incident is running into UFO sighting testimony.  Oh, and
rather than his luggage being "lost", it was delayed for a whole few hours,
with nothing missing or damaged.  I'd just as soon ask Prof. Murphy who
killed JFK or where Jimmy Hoffa is buried as accept his assessments as
valid.

-----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 2:17 PM
To: conlawprof at lists.ucla.edu
Subject: RE: More on the Murphy allegations of speech-basedplacementonno-fly
list, and on reactions to questio

As I have commented to people privately, I do think there is a bit more
here, though hardly enough to make things a slam dunk case.  Part of
what you had to be there for was some evaluation of the agent.  How
casual was the remark, what was the basis, did the person seem
authoritative, intelligent, etc.  In short, you might learn more than
whether this was a joke or not, but again, hardly enough for certainty. 
Professor Murphy, of course, is best placed to make that evaluation. 
Then you have to make some decisions about his capacity to make an
evaluation.  Perhaps he is guilty of thinking too highly of himself. 
But my sense of the universe is that this is a person who is reasonably
sober.  Certainly, a great many people on the web have jumped to equally
unwarranted strong conclusions about Murphy based on his account.

I confess my own, fairly uneducated, sense of the universe, is that
someone who had some access to these things took offense at some things
Murphy said or did, that what went on is not at all systematic, but
targeted.   Put differently, I suspect, that this was not an effort by
the Bush Administration to silence anyone, but an effort by some unknown
person to annoy Professor Murphy, possibly because of his speech,
possibly because of a low grade 5 years ago.  As even the Transportation
Security people indicate, the process by which he was selected was not
entirely (or even mostly) random.   Not exactly implausible the way
these things operate, not exactly provable either.

MAG

>>> Douglas Laycock <laycockd at umich.edu> 04/11/07 1:05 PM >>>


  I am quite prepared to think ill of the Bush Administration, but I
think there is just not much here in the Murphy incident.  It all
depends on the casual remark of the airline agent, who is not likely
to know anything, and if the agent's statement were accurate, we
should have heard of more examples before this one.  The defenders of
the Administration are winning this argument on the merits.  And if
there were anything objectionable going on, incompetence is far more
likely than malice. 

  Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>         I realize that sometimes, "you had to be there," in the
sense
> that the case rests on the witness's account of facts that he
observed.
>
>         But as I understand it, the contested question is whether
Prof.
> Murphy was added to some occasionally-screen list somewhere in some
> FBI/TSA/etc. back office.  Neither Prof. Murphy nor we were there.
> Another question is whether Prof. Murphy's name popped up on a TSA
> computer with some special "we've had him under suspicion" flag (on
the
> first leg of the flight, not the second) -- even if that ever
happens, I
> take it Prof. Murphy wasn't there to look at that computer screen.
>
>         Prof. Murphy was there to talk to the airport (or was it
TSA?)
> employee, and to hear the employee's assertion that speaking at
antiwar
> events would get one placed on the occasionally-screen list.  But I
> don't doubt Prof. Murphy's testimony about what he heard; I am
simply
> not sure why we should think the employee was speaking accurately. 
So
> I'm not sure why being there would tell us much (except that it
might
> rule out the possibility that the employee was simply joking,
unless he
> was joking in a very deadpan way).  What am I missing here?
>
>         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 8:59 AM
>> To: conlawprof at lists.ucla.edu
>> Subject: RE: More on the Murphy allegations of speech-based
>> placementonno-fly list, and on reactions to questio
>>
>> A few small points on this and other points.
>>
>> 1.  To some extent, this is an instance of "you had to be
>> there."  So a good deal of the concern is that, at least in
>> my opinion, this is a person with very good judgment who is
>> not likely to fly off the handle.
>> I think the story plays out somewhat differently with a
>> different person.
>>
>> 2.  My sense is that there is something fishy going on that
>> is not entirely innocent, but that the fishiness is
>> consistent with a number of concerns between pure randomness
>> and being on the no-fly list.
>>
>> MAG
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

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