Julian Sanchez and Radley Balko are, to put it mildly, not pleased with Roger Pilon's Wall Street Journal op-ed on FISA. There are only so many topics I can develop an informed opinion on, and national security law is not one where I have tried, so I don't really have anything to add on the substance of the article. But I do think there's an important problem at the heart of Radley's post:
Julian is right, the real impact of Pilon’s op-ed isn’t its persuasiveness (it isn’t, really), it’s the fuel it gives neocons and Bush acolytes to say, “See? Even the libertarian Cato Institute supports warrantless wiretapping…” It also gives Cato’s leftist critics more fuel to say the organization is really no different than, say, Heritage, or AEI.. . .
I do think it’s a credit to Cato that they allow their scholars to have divergent views on contentious issues. That said, Cato is a libertarian organization. It’s one thing to have internal disputes over issues like intellectual property, incrementalism versus absolutism, or even (at least at the outset), the war in Iraq. But it’s something else to have a scholar making a public case for unchecked executive power to spy on U.S. citizens. Cato would never hire a health care analyst who favors a single-payer health care system. They’d never hire a criminal justice scholar who supports the war on drugs. You might hire, say, an education or trade analyst who doesn’t toe the party line on foreign policy. But you wouldn’t hire an education analyst who thinks we should give more money to the public school system, or a trade guy who supports farm subsidies or steel tariffs.
My opinion on this may reflect a difference in what we write about, because legal writing in general is pretty much exclusively about generating an opinion; there's no expectation that anyone is going to generate independent data. But for economics writing, the reliability of the data set matters, and that means that I have to trust that the person who generated it was at least capable of reaching a conclusion other than the one they ultimately published. I'm already reluctant to use all but the most anodyne data from think tanks--either right or left--precisely because I know that most of the scholars there knew what the answer was before they asked the question. Think tanks that fire people for ideological unsoundness do not get their papers mentioned by me.
I'm not ambivalent about what Cato should do: nothing. No matter how appalling Roger Pilon's position, I think it's better for Cato (and libertarianism) to develop a reputation for tolerating a lot of dissension within the ranks. If people can be fired for developing their own opinions, no matter how stupid or ideologically unsound, then we should stop calling them scholars and start calling them stooges.
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I think Radley Balko’s just upset to find out from a libertarian constitutional scholar that the Constitution doesn’t say what he thinks it should say. It would be nice (from his perspective) if it prohibited “warantless searches” but it doesn’t – it prohibits “unreasonable searches” and what is “reasonable” usually involves a balancing test of the citizen’s reasonable (there’s that word again) expectation of privacy, the interest of the government, and the level of intrusion. Pilon makes a pretty decent argument that given the high stakes involved, the historical treatment of international communications, and the rather modest “intrusion,” the argument weighs pretty strongly in favor of what the president has asked for. Balko might not wish that it was so, but he has so far failed to make a persuasive argument to the contrary. Hence in the grand tradition of true believers everywhere, the heretic must be cast out.
Posted by Thorley Winston | January 30, 2008 4:30 PM