More on the Murphy allegations of speech-basedplacementonno-fly
list, and on reactions to questio
John F. Duffy
jfduffy at law.gwu.edu
Thu Apr 12 07:32:01 PDT 2007
I read this thread late, but I have a small fact that the readers may
find useful.
Mark Graber wrote: "Apparently Murphy was a "selectee," chosen for
reasons "most of which are not publicly disclosed," ... 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."
Ok, I've read the post and I can confirm that being a "selectee" does
happen even to people who support the Administration. For at least a
year and a half, I was a "selectee" on every flight I traveled on. It
was a huge hassle. I could not check-in online or at a kiosk. I had to
wait in line every time to have an agent check my ID and call someone
(somewhere) to get approval for me to board the flight. I was even
subjected to greater searches of my luggage. The process made me once
miss my flight, the only flight I've ever missed in my life.
Now if the Administration was doing this to hassle political opponents,
it wasn't doing a very good job. I worked in the Justice Department
during Bush I, held a top secret security clearance, clerked for Justice
Scalia, have spoken at a few Federalist Society events, and, once while
I was on the selectee list, appeared on a television program defending
the Administration's position in Cheney v. U.S. District Court.
I can also confirm that the airline employees don't know what they are
talking about. I heard all sorts of stories during the 18 months I was
on the list. One agent told me "John Duffy is a very common name, that
must be it. If you just use your full name, your problems will stop."
Another told me, "it can't be your name because the selectee listed is
'John Fitzgerald Duffy'" (a much less common name). Another told me
that "if you just use your frequent flier number, it won't happen to you
any more." (I have been more religious about using my numbers, but I
still occasionally get stopped.) Whatever the reason, the number of
times I have been stopped has declined dramatically in the past year.
Maybe the frequent flier number did some good; maybe not. The last time
it happened was fall 2006.
Here's my conclusions:
(1) I believe every fact that Prof. Murphy relates is 100% true. The
conclusions from those facts are what the disagreement is about.
(2) The government, shockingly enough, actually has been able to keep
secret its conditions for putting people on the selectee list -- or at
least keep them secret from the airline employees. The airline agents
seemed to have no clue as to how the system worked, and rumor was rampant.
(3) Perhaps (and I am less certain of this point because I don't have
rigorous statistics to back me up), the government has been fairly
aggressive in identifying certain people with common names from regions
of the world with unfortunate histories of terrorism. As someone on the
list mentioned, published reports say that Senator Kennedy was once
stopped. I have a friend named Kennedy who also was once (after 2001)
subjected to increased screening and multiple searches of his luggage.
What do Murphy, Duffy, and Kennedy have in common?
Perhaps such a policy is not wildly irrational, though I personally do
wish that the government could be a bit more accurate in identifying
risky people.
Finally, if anyone wants to learn more about the whole selectee process,
there's a nice article forthcoming in G.W. Law Review by Peter Shane on
"The Bureaucratic Due Process of Government Watch Lists"
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896740).
Ok, I have to get going now. I'm flying to New York today. I'm keeping
my fingers crossed.
John Duffy.
--
John F. Duffy
Oswald Symister Colclough Research Professor of Law
George Washington University Law School
2000 H Street, N.W.
Washington, D.C. 20052
phone: 202-994-0014
email: jfduffy at law.gwu.edu
Volokh, Eugene wrote:
> Well, let's recap the bidding briefly. Much here turns on the
>weight to give to the airport clerk's statement -- reported by Prof.
>Murphy -- that people get put on various lists because of their antiwar
>speeches. I wondered whether the clerk was just passing on an
>unsubstantiated rumor, or perhaps even joking. Mark Graber suggested
>that we should defer in some measure to Prof. Murphy's judgment about
>whether the clerk he was talking to was credible, certain, and serious,
>because he was there at the time, because he's a "reasonably sober"
>person whose judgment is to be trusted, and was "best placed to make
>[the] evaluation."
>
> David Bernstein then suggested that "[Prof.] Murphy IS NOT in
>the best position to determine anything," and pointed to evidence that
>David thought suggested some reasons to doubt Prof. Murphy's reliability
>here -- evidence that "he has a grandiose sense of his own importance,"
>coupled with later "commentary on the incident [that] is running into
>UFO sighting testimony." He finished with a summary of his view of
>Prof. Murphy's credibility, where the who killed JFK or where Jimmy
>Hoffa is buried items appeared.
>
> My sense is that the "grandiose sense" claim is in no way an ad
>hominem fallacy; rather, it suggests that Prof. Murphy's judgment -- on
>which Mark Graber suggested we rely in evaluating what actually happened
>-- is unreliable. Likewise, the "UFO sighting" claim is also not an ad
>hominem fallacy; rather, it too suggests that Prof. Murphy's judgment is
>not as sober as Mark Graber suggested. Recall, that none of this
>touched on, say, arguments about what the First Amendment allows or
>forbids; if it did, then it would be ad hominem, since we can evaluate
>such legal arguments on their own, without regard for the arguer's
>credibility. But when it comes to whether Prof. Murphy was indeed
>detained based partly on his antiwar speech, Prof. Murphy's credibility
>*is* very much in issue, for precisely the reasons that Mark Graber
>poins to.
>
> Finally, the JFK/Hoffa comments are likewise not an example of
>the ad hominem fallacy -- they are simply attempts (perhaps too
>hyperbolic) to summarize the commenter's view of Prof. Murphy's
>credibility. One can fault them for being more harsh or personal than
>is useful for list discussion. But they related to the credibility of a
>fact witness, credibility that the witness's defenders had earlier
>acknowledged was in issue; that keeps them from being ad hominem
>arguments, it seems to me.
>
> Eugene
>
>Douglas Eldin writes:
>
>
>
>>I'm almost finished with this, subject to whatever someone
>>else might say. But I must note that Prof. Volokh's
>>understanding of the ad hominem fallacy in relation to this
>>exchange is not mine. Or maybe I should say that I agree
>>with his definition but not his conclusion that it is
>>inapplicable here. To the extent that Prof. Murphy's
>>credibility and temperament as a witness to these events are
>>relevant to this discussion -- for constitutional law
>>purposes -- I still fail to see how claims about his alleged
>>"grandiose sense of his own importance" or "UFO sighting" or
>>"who killed JFK" or "where Jimmy Hoffa is buried" have
>>anything whatsoever with the argument about government action
>>in response to participation at a rally that may be
>>unconstitutional. At the bottom of the well, that claim
>>depends upon whether Prof. Murphy's name is on a list to
>>which no one on this list (presumably) has access.
>> The rest is just conversation.
>>
>>Doug
>>
>>Volokh, Eugene wrote:
>>
>>
>>> I tend to agree that we should try to tone down the
>>>
>>>
>>rhetoric (though
>>
>>
>>>not the substance) of our criticisms of individuals to the extent
>>>possible, even when the person's personal attributes are
>>>
>>>
>>relevant to
>>
>>
>>>his credibility.
>>>
>>> In such cases, criticism of the person's temperament
>>>
>>>
>>are not "ad
>>
>>
>>>hominem" in the fallacy sense of the word. A logically unsound ad
>>>hominem attack is one that focuses on the arguer rather than the
>>>argument, but when the argument rests on the arguer's personal
>>>testimony, his credibility and temperament become part of the issue.
>>>This is why Mark Graber, for instance, mentioned that his "sense of
>>>the universe is that this is a person [Prof. Murphy] who is
>>>
>>>
>>reasonably
>>
>>
>>>sober"; Prof. Murphy's temperament is indeed relevant here.
>>>
>>> Likewise, I think such criticism does have nothing "in
>>>
>>>
>>the world ...
>>
>>
>>>to do with constitutional law": The original post
>>>
>>>
>>suggested that the
>>
>>
>>>Administration was engaging in activity that is likely
>>>unconstitutional; the post relied in part on personal
>>>
>>>
>>testimony by Prof.
>>
>>
>>>Murphy; whether or not the Administration is violating
>>>
>>>
>>constitutional
>>
>>
>>>law thus turns on Prof. Murphy's account.
>>>
>>> Nonetheless, while judgment of Prof. Murphy's
>>>
>>>
>>temperament is relevant
>>
>>
>>>and not ad hominem, it seems to me helpful to list discussion to
>>>present in as mildly as possible, given the need to convey the
>>>substance. Unfortunately, this principle has long been ignored on
>>>this list as to government officials, for instance by me as
>>>
>>>
>>to Nancy Pelosi.
>>
>>
>>>I do not regret my harshness towards Pelosi, given the
>>>
>>>
>>harshness I've
>>
>>
>>>heard with regard to various Republican government
>>>
>>>
>>officials (though I
>>
>>
>>>would welcome a time when everyone on the list toned down
>>>
>>>
>>the personal
>>
>>
>>>criticisms generally, and though I would gladly go along with such
>>>mutual action). But it does seem to me that if we can
>>>
>>>
>>maintain this
>>
>>
>>>principle with regard to those who are below Pelosi's and
>>>
>>>
>>Bush's rank,
>>
>>
>>>it would lead to more productive discussion on the list.
>>>
>>> Eugene
>>>
>>>
>>>
>>>
>>>>-----Original Message-----
>>>>From: conlawprof-bounces at lists.ucla.edu
>>>>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
>>>>
>>>>
>>Douglas Edlin
>>
>>
>>>>Sent: Wednesday, April 11, 2007 1:27 PM
>>>>To: David Bernstein
>>>>Cc: conlawprof at lists.ucla.edu
>>>>Subject: Re: More on the Murphy allegations of
>>>>speech-basedplacementonno-fly list, and on reactions to questio
>>>>
>>>>David,
>>>>
>>>>I'm just speaking for myself, perhaps, but the fundamental
>>>>
>>>>
>>difference
>>
>>
>>>>is between criticizing the government and ridiculing an individual
>>>>(and professional colleague).
>>>>Governments don't have feelings. And if the best we can do on this
>>>>list is resort to ad hominem attacks to try to make our
>>>>
>>>>
>>points, then
>>
>>
>>>>we are evidently doomed to live in a cable news world. I'd like to
>>>>see us try to do better (and my earlier point about
>>>>
>>>>
>>constitutional law
>>
>>
>>>>still stands, by the way).
>>>>
>>>>Doug
>>>>
>>>>David Bernstein wrote:
>>>>
>>>>
>>>>
>>>>>As opposed, to say, spreading fantastic, unsubstantiated
>>>>>
>>>>>
>>>>rumors about
>>>>
>>>>
>>>>
>>>>>government conspiracies without a shred of real evidence?
>>>>>
>>>>>-----Original Message-----
>>>>>From: Douglas Edlin [mailto:edlind at dickinson.edu]
>>>>>Sent: Wednesday, April 11, 2007 3:47 PM
>>>>>To: David Bernstein
>>>>>Cc: 'Mark Graber'; conlawprof at lists.ucla.edu
>>>>>Subject: Re: More on the Murphy allegations of
>>>>>speech-basedplacementonno-fly list, and on reactions to questio
>>>>>
>>>>>I've never met Prof. Murphy and never expect to (although
>>>>>
>>>>>
>>>>his work is,
>>>>
>>>>
>>>>
>>>>>of course, sterling). But I don't need to. This is, for me, well
>>>>>over the line of what is acceptable for civil discourse among any
>>>>>group, to say nothing of a group of thoughtful individuals
>>>>>
>>>>>
>>>>who might
>>>>
>>>>
>>>>
>>>>>reasonably be expected to model civil discourse for others
>>>>>
>>>>>
>>>>(their students, at least).
>>>>
>>>>
>>>>
>>>>> And could someone please explain what in the world this
>>>>>
>>>>>
>>has to do
>>
>>
>>>>>with constitutional law? I don't mean in some abstract First
>>>>>Amendment sense; I mean the text of the message below.
>>>>>
>>>>>
>>>>Enough is enough.
>>>>
>>>>
>>>>
>>>>>Thanks,
>>>>>
>>>>>Doug
>>>>>
>>>>>David Bernstein wrote:
>>>>>
>>>>>
>>>>>
>>>>>
>>>>>>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.
>>>>>>
>>>>>>
>>>>>>
>>>>>
>>>>>
>>>>>
>>>>--
>>>>Douglas E. Edlin
>>>>Assistant Professor
>>>>Department of Political Science
>>>>Dickinson College
>>>>P.O. Box 1773
>>>>Carlisle, Pennsylvania 17013
>>>>717.245.1388
>>>>_______________________________________________
>>>>To post, send message to Conlawprof at lists.ucla.edu To subscribe,
>>>>unsubscribe, change options, or get password, see
>>>>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>>>
>>>>Please note that messages sent to this large list cannot be
>>>>
>>>>
>>viewed as
>>
>>
>>>>private. Anyone can subscribe to the list and read
>>>>
>>>>
>>messages that are
>>
>>
>>>>posted; people can read the Web archives; and list members can
>>>>(rightly or wrongly) forward the messages to others.
>>>>
>>>>
>>>>
>>>_______________________________________________
>>>To post, send message to Conlawprof at lists.ucla.edu
>>>To subscribe, unsubscribe, change options, or get password,
>>>
>>>
>>see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>>
>>>Please note that messages sent to this large list cannot be
>>>
>>>
>>viewed as private. Anyone can subscribe to the list and read
>>messages that are posted; people can read the Web archives;
>>and list members can (rightly or wrongly) forward the
>>messages to others.
>>
>>--
>>Douglas E. Edlin
>>Assistant Professor
>>Department of Political Science
>>Dickinson College
>>P.O. Box 1773
>>Carlisle, Pennsylvania 17013
>>717.245.1388
>>
>>
>>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
>
>
>
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