Right to travel and airplanes
Volokh, Eugene
VOLOKH at law.ucla.edu
Wed Apr 11 14:01:23 PDT 2007
Setting aside the questions (which I should just note are not
fallaciously ad hominem, to the extent they go to the witness's
credibility) about this particular story, Matthew Holden raises an
excellent question. If I might refine, may I ask the following?
(1) What (if anything), short of probable cause that would
justify an arrest, should let the government actually stop someone from
flying on commercial aircraft? I assume that there are not 325,000
people who are on such a literal no-fly list -- my sense is that
"no-fly" is sometimes used as an imprecise term to include lists that do
*not* bar people from flying -- but there may well be some, and we
should certainly think about those people's rights.
(2) What, short of probable cause that would justify an
arrest, should let the government detain someone for a 10-to-20-minute
extra screening or investigation -- I cite 10 minutes, because it sounds
like this is what happened to Prof. Murphy, see
http://blog.wired.com/27bstroke6/2007/04/professor_bashi.html?
(3) What, short of probable cause that would justify an arrest,
should let the government detain someone for a longer extra screening or
investigation, of the sort that both takes up a good deal of time and
might lead the person to miss his flight and thus delay his travels by
hours or maybe even a day?
Eugene
Matthew Holden writes:
________________________________
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
matthewhpolsci at aol.com
Sent: Wednesday, April 11, 2007 1:23 PM
To: davidebernstein at aol.com; mgraber at gvpt.umd.edu;
conlawprof at lists.ucla.edu
Cc: hochschild at gov.harvard.edu
Subject: Re: More on the Murphy allegations of
speech-basedplacementonno-fly list, and on reactions to questio
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
DIRECT MAILING ADDRESS
P. O. Box 12588
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Phone: 601-952-0596
-----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
<javascript:parent.ComposeTo("conlawprof-bounces%40lists.ucla.edu",
"");>
[mailto:conlawprof-bounces at lists.ucla.edu
<javascript:parent.ComposeTo("conlawprof-bounces%40lists.ucla.edu",
"");> ] On Behalf Of Mark Graber
Sent: Wednesday, April 11, 2007 2:17 PM
To: conlawprof at lists.ucla.edu
<javascript:parent.ComposeTo("conlawprof%40lists.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
<javascript:parent.ComposeTo("laycockd%40umich.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
<javascript:parent.ComposeTo("VOLOKH%40law.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
<javascript:parent.ComposeTo("conlawprof-bounces%40lists.ucla.edu",
"");>
>> [mailto:conlawprof-bounces at lists.ucla.edu
<javascript:parent.ComposeTo("conlawprof-bounces%40lists.ucla.edu",
"");> ] On Behalf Of Mark
Graber
>> Sent: Wednesday, April 11, 2007 8:59 AM
>> To: conlawprof at lists.ucla.edu
<javascript:parent.ComposeTo("conlawprof%40lists.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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