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Sunday, November 26, 2006
A Post-Thanksgiving Provocation
In an attempt to stir folks out of their turkey, stuffing, and pie-fed lassitude, I'll ask the following question, meant to be somewhat provocative but not merely rhetorical.
A year or two ago, one could find on respectable law blogs (this one and the Volokh Conspiracy, for example), the argument that criticism of the Iraq war or Bush's policies in Iraq, while at least probably and/or usually protected by the First Amendment, had the negative effect of undermining troop morale, emboldening our enemies, or otherwise harming U.S. interests.
While this argument is probably still made in some quarters, I haven't encountered it on mainstream legal blogs in some time. My question, is, why not?
Is it because that argument has been so thoroughly discussed that there isn't anything new to say about it anymore? If that's the claim, doesn't the significantly increased amount of criticism of the war in the past year make the question of how much this criticism is undermining our interests more important?
Is it because the more recent criticism is of a different kind, and thus it has different effects?
Is it that it's harder to make the argument, in public at least, that criticism of a war undermines a country's interest when a majority of the country opposes the war? In other words, do folks still believe the argument, but just find it more difficult to make?
More generally, what can we say now about free speech in a time of war -- not just "what should the legal rule be?" but what the policy concerns should be?
Posted by JosephSlater on November 26, 2006 at 03:10 PM in Law and Politics | Permalink
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Comments
People aren't trying to suppress dissent any more because the country has ceased its lemming-like "do whatever the authorities tell you -- and shut up" mood. It's no longer safe to advocate intolerance and insanity from high places.
After living through the Bush Administration's fear-mongering, it's easier to see through some puzzles of history that had always bothered me -- like why anybody sane would commence a world war over the assassination of one Archduke. Or how a sane German populace would elect and follow Hitler. The answer is, they weren't sane at the time. They were manipulated by fear, into conformity with monsters.
Need I remind people how not only a very prestigious law prof, but also a now-serving Ninth Circuit judge, were making detailed public and private arguments in favor of torture -- and almost nobody was telling them they were full of shit? Indeed, few have done so even to this day.
Thank you for raising the question.
Posted by: John Gilmore | Dec 7, 2006 3:57:36 AM
Bart Motes-
While I am aware that people say these things, I am unconvinced that they truly believe them.
People frequently make arguments that they don't actually believe, especially when those arguments have a double function as insults. For example, it is not difficult to find people making the claim that this or that judicial opinion was by a "liberal activist judge," even when the opinion in question is entirely determined by clearly written statutory law passed by a conservative legislature, leaving the judge no discretion whatsoever with which to be either liberal or an activist. The claim that the judge was a "liberal activist judge" serves as an insult and as a means of framing an in group and an out group. The fact that its completely untrue doesn't even sink in to the person making the claim. The truth was beside the point. They didn't like the judge, and when they don't like judges, they call them liberal activists.
I think the same is true of arguments that people who criticize the war are undermining the troops. The fact this is implausible and they know it isn't the question. Its what you say to insult war critics. The fact that you say it fervently isn't a factor of how much you believe it, it is a factor of how much you hate war critics.
Posted by: Patrick | Nov 29, 2006 9:55:34 AM
Nicholas Kristof's op-ed today is about basically the same thing.
The Cowards Turned Out to Be Right
NICHOLAS D. KRISTOF
For several years, the White House and its Dobermans helpfully pointed out the real enemy in Iraq: those lazy, wimpish foreign correspondents who were so foolish and unpatriotic that they reported that we faced grave difficulties in Iraq.
To Paul Wolfowitz, the essential problem was that journalists were cowards. ''Part of our problem is a lot of the press are afraid to travel very much, so they sit in Baghdad and they publish rumors,'' Mr. Wolfowitz said in 2004. He later added, ''The story isn't being described accurately.''
Don Rumsfeld agreed but suggested that the problem was treason: ''Interestingly, all of the exaggerations seem to be on one side. It isn't as though there simply have been a series of random errors on both sides of issues. On the contrary, the steady stream of errors all seem to be of a nature to inflame the situation and to give heart to the terrorists and to discourage those who hope for success in Iraq.''
As for Dick Cheney, he saw the flaw in journalists as indolence. ''The press is, with all due respect -- there are exceptions -- oftentimes lazy, often simply reports what someone else in the press says without doing their homework.''
(continues)
Posted by: Bart Motes | Nov 28, 2006 9:44:45 AM
Thanks, Joseph. The VC archives do retain comments, if comments were opened. So for example, Juan non-Volokh's link to Teson's post didn't have comments open.
With the caveat that I'm not entirely sure this argument was widely made, I assume the reason it is no longer made is that the argument seems to assume that the criticisms are unfair/unmerited or simply made in bad faith. As support for the war drops, and criticisms are more widely shared and thus more widely seen as fair and merited, this argument tends to appear less often.
Posted by: Orin Kerr | Nov 27, 2006 8:41:59 PM
Well, there are still arguments, from at least one respectable law professor, that it's important to success in Iraq that our enemies believe that we won't pull out, and arguing that we should pull out certainly undermines that effort.
As I read it, Prof. Teson's post was pretty hypothetical, and he wasn't, say, complaining about the empirical effects of actual criticism of the war. So I'm not terribly surprised that there isn't much need to rehash those arguments.
Posted by: Chris | Nov 27, 2006 7:08:30 PM
Well OK, here's one link:
http://prawfsblawg.blogs.com/prawfsblawg/2005/12/war_and_speech.html
Orin, you are no doubt better at navigating the Volokh Conspiracy archives than I am, but it's not hard to find similar stuff there -- although as far as I can tell, the archive doesn't include the comments that followed specific posts, and those really gave the flavor to those debates.
But let me stress, I am NOT trying to criticize people for what they posted in the past. Rather, I am honestly curious as to why this type of argument isn't made more today on legal blogs.
Posted by: Joseph Slater | Nov 27, 2006 5:40:30 PM
This is a really interesting question, but I think it's hard to assess without links. I recognize the concern about "calling out" posters; at the same time, it seems much more productive to criticize specific people for what they provably did than to criticize an undefined group for what they allegedly did.
Posted by: Orin Kerr | Nov 27, 2006 5:28:33 PM
Here is my contribution to the garbage heap of comments.
I have heard the same sentiment from war supporters as Bart Motes has. Any broadcast on C-Span about the Iraq war, has at least some listeners (on the Republican line) make similar claims. That the grumblings of anti war sissies have brought about the Iraq disaster. The question to ask them is what would have prevented the disaster? Killing all Iraqis, may be?
The reason for the silence and the lack of discussion is not because those folks have suddenly become champions of unfettered free speech. It is because Iraq no longer looks like the glorious adventure many thought it would turn out to be. It is not fun to be sanctimonious about a losing proposition. Those of us who saw Iraq as a foolhardy and immoral choice from the beginning, were asked to shut up under various threats - lowering of troop morale was one of them. The irony is that Bush-Cheney-Rumsfeld did a far better job of demoralizing the troops than any war critic could have done.
My husband and I met a couple of soldiers on our way home from Japan last September at the Dallas airport. They were returning home to Houston on leave from their station in Ramadi. Once they became convinced of where we stood on the Iraq war, they opened up and told us some horrifying details about their experience. They were depressed, demoralized and it was not due to what war critics were saying but what they saw as an utterly useless effort. Before we parted company, they said to us that the armed forces were being pressured to make Iraq look "pretty" before the November elections for Bush and the Republicans and that US servicemen were eager to see how Americans would vote. It was crystal clear to us which way those disgusted soldiers were planning to vote. And they told us amazing things - two complete strangers they met at an airport. Imagine what they are really thinking.
But it comes as no surprise to me that there is already effort underfoot in some committed quarters to change the rhetoric and deflect blame.
It won't be long before the law blogs in question that Professor Slater alludes to, too will find a way to justify their own jingoistic positions.
Posted by: Ruchira Paul | Nov 27, 2006 1:38:15 PM
To folks asking for links:
I intentionally didn't give links because I didn't want to seem to be "calling out" particular posters. This stuff isn't hard to find, however, if you want.
Kate:
Since we're inventing Great Rules, I'll note that yours illustrates the problem of criticizing somebody else's writing on the basis that it wasn't what you yourself were interested in, and thus missing the point of what was originally written.
My original post did invite people to address the policy questions surrounding criticism of a war in a time of war -- admittedly in a more succint way than you suggest I should have. But I am at least as interested in the question of why people who used to make the argument that criticizing the war undermines the morale of troops no longer make it.
Posted by: Joseph Slater | Nov 27, 2006 12:53:40 PM
hmm, did anyone actually say that Bush was stupid or even that Republicans were stupid? (There was some criticims of the young republicans, but not for being stupid, it seemed.) Maybe you can read minds as well as blog posts. And of course in cases where real questions, such as the onese you suggest above, are brought up there can be discussion, but often enough the line suggested in the original post wasn't brought up to provoke discussion but rather to smash opponents over the head with. As such it doesn't deserve resoned commentary.
Posted by: Matt | Nov 27, 2006 12:36:38 PM
This post and the comments below illustrate the Litvak’s Great Rule of Blog Comments – Garbage In, Garbage Out ™. If the post above actually contained some thought, it might have provoked a discussion beyond “the argument is stupid; Republicans are stupid; Bush is stupid.”
For example, the post could have said something like this: Is there any merit to the argument that in democracies, military campaigns are affected by domestic attitudes towards those campaigns? Though which mechanisms/institutions are the effects channeled? Through public protests? Newspaper articles? Elections? General grumbling and annoyance of the population? Letters to the troop from home? Is there any evidence of such effect in prior military campaigns? Does the effect differ depending on the kind of war? Does it differ depending on which domestic circles are in the opposition – and why they are in the opposition? Does it differ depending on the economic situation of the country? Does it differ depending on the prior relationship between the fighting countries? If there is some relationship between domestic attitudes and the success in wars, does it help to change the permitted expressions of those attitudes to help in war efforts, or do such cosmetic measures not help, and the only relevant change has to be a deep attitudinal change? If it is indeed true that the “keep the troops’ morale up” arguments have receded now, is that because people realized that there is no relationship between public expressions of anti-war attitudes and troop morale? Or that there is no relationship between troop morale and military success? Or there is no relationship between the calls to shut up and the behavior of people who criticize the war, so what’s the point in continuous calls to shut up?
Now, that kind of post could have generated some thoughtful replies.
Before you start fuming: I am generally anti-government and therefore anti-wars.
Posted by: Kate Litvak | Nov 27, 2006 12:16:54 PM
I disagree with Patrick on the point that no one believed the argument. Scarily enough, if you talk to young Republicans, even today, the gung-ho militarists who funnily enough aren't actually, you know, in the military, they really believe the recycled "the war protesters lost Vietnam for us" argument. Not only that but they'll tell you with a straight face that the liberal media is hiding the good news about Iraq and is rooting for us to fail. They really believe this stuff.
And you can find the arguments discussed in Slater's post at many right wing blogs today. There's a grumpy undercurrent of the argument even in mainstream blogs like Instapundit.
I think its kind of scary to have a substantial minority of the country convinced that a fifth column is intent on sabotaging the war effort.
Posted by: Bart Motes | Nov 27, 2006 10:12:35 AM
Ah, sneaky, leaving the obvious conclusion for the reader to draw for themself.
No one honestly believed that argument in the first place. Not one single person. And the fact that it appeared on "respectable" law blogs doesn't mean the argument was respectable, it means that the law blog was mislabeled.
Posted by: Patrick | Nov 27, 2006 9:57:40 AM
Oh, and of course the debate has a side effect of potentially undermining the war effort. It just may not be a bad thing.
Suppose my friend Sally is about to marry a jerk. Of course it might shake her faith if I tell her not to do it. In a country of millions, my vocal opposition will convince someone. Sally might
a) Be resolute and ignore me
b) Be cautious but do it anyway
c) Listen to me and not do it and be happier for it
d) Listen to me and regret it (because I am secretly motivated by jealousy)
I think the fear here is (d). Especially is "jealousy" becomes partisanship or radicalism.
It's just that this is in no way a justification for limiting speech, especially given (c).
Posted by: Chris B | Nov 26, 2006 11:55:47 PM
I suggest that the debate has died down because at the time it was fueled by partisanship. Now criticisms are more difficult to refute and defenses harder to justify.
Posted by: Chris B | Nov 26, 2006 11:50:49 PM
I'm with Chris: I don't remember this argument being made in legal blog circles. Links would be great.
Posted by: LawprofLarry | Nov 26, 2006 9:58:12 PM
The argument that such comments would undermine troop morale certainly isn't valid, at least nowadays. I am dating a soldier in the Army, and from what he and I have witnessed, the troops engage in more criticism of the war and Bush's policies than anyone else.
Posted by: Bev | Nov 26, 2006 8:29:52 PM
A year or two ago, one could find on respectable law blogs ... the argument that criticism of the Iraq war or Bush's policies in Iraq, while at least probably and/or usually protected by the First Amendment, had the negative effect of undermining troop morale, emboldening our enemies, or otherwise harming U.S. interestsThere's no tension between those two statements. Both can be (and, most likely, are) true at once. Perhaps the argument died down because people realized that it doesn't actually move the debate very far to establish that the First Amendment says nothing about whether you should say something, only about whether the government can prevent your doing so - that is, it protects people's right to make bad arguments as readily as it protects their right to make good arguments?
Posted by: Simon | Nov 26, 2006 8:25:01 PM
I don't remember the details of how the arguments went, or how the suggested moral principles were phrased. Could you give us some links?
Posted by: Chris | Nov 26, 2006 6:22:37 PM
Let me pile on and say that we can only hope we don't see that argument so much any more because it was, frankly, stupid.
Posted by: Matt | Nov 26, 2006 6:18:08 PM
Jim hits the nail on the head. Those "respectable law blogs" were wrong. These issues needed to be discussed; to say they shouldn't be as this country meandered into a quagmire was likely a serious disservice.
What can we say about free speech in time of war? That its protection is more critical than at any other time, and that efforts to squelch it, however well-intended, ultimately betray the principles our troops in the field are supposedly fighting for.
One final pragmatic point - in the age of blogs and other grassroots media, "respectability" counts for less and less. One must defend one's arguments in the blogosphere, not merely burnish one's credentials. Within the example you cite lies a lesson - not only SHOULDN'T you attempt to minimize discussion of major public policy issues, you probably can't. In this and many other cases it's simply beyond anyone's power to control anymore. And that's on balance, IMO, a good thing. Best,
Posted by: Gritsforbreakfast | Nov 26, 2006 4:31:54 PM
Or might it be that the argument never held water in the first plact? The fact that an argument appears in a "respectable" venue does not alone make the argument itself respectable.
Posted by: Jim Milles | Nov 26, 2006 4:00:31 PM
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