A Stone’s throw from an argument

Aaron Brenzel is a rising sophomore at the University of Chicago. This past February Aaron attended a debate symposium featuring Andrew McCarthy, Professor Geoffrey Stone and Judge Richard Posner on “Defending Democracy: Balancing the Fight for Civil Liberties with the Fight Against Terrorism.” The Chicago Maroon briefly reported on the debate here. Aaron forwarded his own eyewitness report in the context of our critical comments on Professor Stone’s Chicago Tribune op-ed column here yesterday:

I just got done reading both your blog post about Geoffrey Stone’s op-ed in the Trib as well as the op-ed itself, and I have to say I’d agree with your characterization of Stone as too committed to his own partisanship to give the issues in the case the treatment he should as a prominent professor of constitutional law at one of the nation’s top law school. I myself am only an undergrad at the University of Chicago, so I have had limited exposure to Professor Stone, but I wanted to share with you the impressions I got of him first-hand when I witnessed a debate between him, the incomparable Judge Richard Posner, and Andrew McCarthy, the lead prosecutor in the Shaykh Omar conspiracy trial relating to the 1993 World Trade Center bombing. I was in attendance with a friend of mine from the College Republicans.

My first observation of Professor Stone actually came with the flyer announcing the debate. As I recall, he was listed not just as a professor of constitutional law but also as a “civil liberties expert.” The significance of that inclusion would shortly become apparent as the debate progressed. The opening statement was given by Mr. McCarthy, and his comments about the limitations of “law enforcement strategy” for fighting terrorism were interesting. However, he was all too quickly drowned out by a rather sharp, extended exchange between Judge Posner and Professor Stone on the NSA program, which had just been recently outed by the New York Times when the debate occurred. My recollection of the tenor of the debate goes something like this:

Judge Posner: There is an argument to be made from the president’s Article II powers…

Professor Stone: Oh that’s poppycock.

Judge Posner: No it’s not. Multiple FISA court precedents reference…

Professor Stone: It’s poppycock. The NSA program is obviously illegal domestic spying.

Judge Posner: If you’ll just let me finish…

Professor Stone: This is the worst abuse of executive authority since the Alien and Sedition Acts of 1798!

And so on. I found Judge Posner to be the quiet and thoughtful scholar I had always heard him to be, and Professor Stone to be rather hot-headed. His reference to the Alien and Sedition Acts wasn’t accidental, as he just recently published a mammoth tome on free speech in wartime titled, appropriately, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. I have not read the book, but from Professor Stone’s performance in the debate I can guess that he concludes President Bush’s tyranny is on a par with John Adams’ jailing of dissenters and censorship of publications. His op-ed in the Trib is further evidence that he appears to care more for the “civil liberties expert” element of his CV than the “law professor” part, because in both the debate and the op-ed he spent more time asserting a decidely partisan rather than legal view of the issue. He even praises the judge for having “courage” to stand up to President Bush! Exactly what consequences did she reasonably expect to face?

After that, he ignores the reasoning of the decision and instead focuses on some irrelevant personal background of Judge Taylor’s and closes with some more bizarre praise for her courage and commitment to the law. I find it particularly galling that he praises her commitment to the law without more than a cursory examination of her legal reasoning, but merely concludes that because he a) believes he is committed to the law and b) dislikes the NSA program and Judge Taylor dislikes the NSA program too, she, like him, must also be committed to the rule of law. “Commitment to the rule of law” must be some sort of code for a particular brand of partisanship these days.

I forwarded Aaron’s message to Andrew McCarthy, inquiring whether he had written anything on the debate. Mr. McCarthy kindly kindly responded:

I don’t believe I wrote anything about the UChicago event, which was a lot of fun notwithstanding that it was on the evening of Valentine’s Day (when, historically, Chicago is not always the best place to be!). Judge Posner and Prof. Stone did get into it on the NSA, as your correspondent reports. (Toward the end, I remember saying that it reminded me of growing up in The Bronx, to the point of asking, “Is this a private fight or can anyone join?”).

I didn’t write about it because, at the time, I was buried — in the process of writing a white paper for the Federalist Society on the NSA program. That required, in effect, that I both respond to Geoff Stone (who was one of the signatories on the Scholars’ Letter to which the white paper was largely designed to respond) and talk about Judge Posner’s musings (with which I was largely, though not completely, in agreement). If you’re interested, that (lengthy) white paper is available here (PDF).

The other thing you might find interesting is that, by then, I had already had quite a bit to say about Geoff’s book, Perilous Times. It was pivotal to an essay I wrote for the March 2005 issue of Commentary (“Free Speech for Terrorists?”). That piece prompted some vigorous debate — the June 2005 Commentary published responsive letters from Geoff, Judge Bork, Lino Graglia and Walter Berns, as well as a response from me. I have a feeling this issue is about to get a lot of traction again since my old office is now prosecuting an al-Manar guy.

We’ll have to see if we can prevail on our friends at Commentary to makes the article and related letters accessible online. In the meantime, thanks to Aaron Brenzel and Andrew McCarthy for this illuminating postscript to Professor Stone’s disappointing op-ed column.

JOHN adds: I know I’m a broken record here, but the legality of the NSA program is not a tabula rasa on which professors can just write their opinions. As we have written over and over, there are at least five or six federal appellate court decisions holding that the President has the power under Article II of the Constitution to order warrantless intercepts of communications for national security purposes, without Congressional authorization. I suppose one could try to argue that those decisions don’t apply to the NSA program for some reason, although the 2002 decision of the FISA appellate court would seem to be directly on point. But for anyone purporting to be a legal scholar to try to argue the legality of the NSA program without even acknowledging the extensive federal case law that supports the program’s legality is intellectually dishonest.

UPDATE: Aaron Brenzel writes to clarify:

I did not mean to imply that Professor Stone was jumping around, waving his arms in the air, and raving like a madman. All participants followed the rules of the debate. The exchange I pointed out to you occurred after the formal statements when the audience was allowed to ask questions and the participants were allowed to speak more or less freely. That’s when Posner and Stone got into it on the NSA program, and McCarthy basically sat out for about 30 minutes, as he said in correspondence to you. His memory of “is this a private fight, or can anyone join in?” fits well with my own memory of the fierceness of the argument. Stone did make a few concessions to Posner on the issue of constitutional powers, but I don’t think his heart was in them. To explain, he began the argument by calling those arguments “poppycock” at least once, and I remember his use of that word because it is such an unusual word for someone my age to hear.

He was forced to backpedal when Posner made some undeniably valid arguments, but he appears not to believe those concessions anymore, if his op-ed is anything to go by. His characterization of the NSA program in his op-ed as undeniably against the rule of law and his initial dismissal in the debate of arguments to the contrary as poppycock are probably the most accurate descriptions of his true opinion, especially given that in an print environment one is not subject to immediate direct response and therefore never has to backpedal from the full extent of one’s opinion.

I remember discussing with my friend from the College Republicans about our thoughts of the debate, and we both agreed that Stone’s arguments and demeanor during the debate were unimpressive. Of course, we’re biased, but on the other hand it is not every day that one hears “poppycock” used in an argument. I was also surprised that neither Posner nor Stone discussed some of the more specific cases dealing with this issue, although that may have been for fear of losing a largely non-professional audience in a morass of legal minutiae. So, I certainly did not mean to imply that Stone was insulting to Posner or otherwise rude, just that I found his tone to be decidely partisan and impassioned, even hot-headed, rather than analytic, a quality which I believe is also in evidence in the op-ed you reported about.

I think that Judge Posner generally declines to argue the legality of the NSA enemy eavesdropping program because he serves as a Seventh Circuit judge who may have to address the issue in a judicial capacity. No such constraint limits Professor Stone. A recording of the January 31, 2006 debate between Professor Stone and Judge Posner is accessible here; it is not a satisfying debate because of the constraints under which Judge Posner is operating.

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