One of the more problematic mechanisms of argumentation is the laundry list, the lengthy list proffered in support of a position by its advocate in an effort to demonstrate two related points: first, that the target of the argument is nothing new, and second, that there is a wealth of support for the line of reasoning, if not the particular application, of the argument.
What makes this method a problem is that the advocate, tendering the laundry list, has had ample opportunity to put it together, while the person arguing against it is often left with little to no time to parse the list, separate the individual items on the list, research the specifics of the list and test whether it’s in fact correct and that the rationale for each item on the list is, as claimed, relevant to the argument then being made.
It’s also a problem that a list has surface appeal, so the absence of being able to individually address each item on the list leaves the decision-maker with the superficial sense that the list has some merit.
Beware the laundry list. Its use as a rhetorical device invariably conceals its failure of support. If there was direct logical support for the proposition for which it’s being offered, the advocate wouldn’t need to throw everything against the wall, but would focus on the specific argument that conclusively demonstrates the propriety of the position.
When constrained to argue by laundry list, a red flag should immediately go up, signifying that there is no direct support for the proposition, and the advocate is thus left to cobble together unrelated anecdotal arguments in the hope that nobody notices. It’s quantity over quality, or the old “if you can’t dazzle them with brilliance, baffle them with bullshit.”
What the hell is he talking about? John Yoo provides a great example, in his just-released memo when he was deputy assistant attorney general in the Office of Legal Counsel of the Department of Justice. The memo to FISA Judge Colleen Kollar-Kotelly was parsed by Brad Heath at USA Today, Mike Masnick at Techdirt, and finally Tim Cushing at Techdirt. It was written in 2002, when memories of 9/11 were fresh and the government’s mantra was that 9/11 changed everything.
So what made warrantless surveillance permissible, Fourth Amendment notwithstanding, according to Yoo?
A variety of government searches, therefore, have met the Fourth Amendment requirement of reasonableness without obtaining a judicial warrant. The Supreme Court, for example, has upheld warrantless searches that involved the drug testing of high school athletes, id, certain searches of automobiles, Pennsylvania v. Labron, 518 US. 938 (1996) (per curiam), drunk driver checkpoints, Michigan v. Dept of State Police v. Sitz, 496 U.S. 444 (1990), drug testing of railroad personnel, Skinner v. Railway Labor Executives Ass’n 489 US. 602 (1989), drug testing of federal customs officers, Treasury Employees v. Von Raab, 489 US. 656 (1989), administrative inspection of closely regulated businesses, New York v. Burger, 482 US. 69] (1987), temporary baggage seizures, United States v. Place, 462 U.S. 696 (1933), detention to prevent flight and to protect law enforcement officers, Michigan v. Summers, 452 U.S. 692 (1931), checkpoints to search for illegal aliens, United States v. Martinez-Fuerte, 423 US. 543 (1976), and temporary stops and limited searches for weapons, Terry v. Ohio, 392 US. 1 ([96 8). The Court has cautioned, however, that a random search program cannot be designed to promote a general interest in crime control. See Indianapolis v. Edmond, 531 U.S. 3 2, 41 (2000); Delaware v. Prouse, 440 US. 648, 659 n.13 (I979).
Is that it? Oh no, there’s more.
If privacy interests are viewed as intruded upon only by [redacted ] is likely that Fourth Amendment interests would not outweigh the compelling governmental interest present here, In the context of roadblocks to stop drunken drivers, another area of “special needs” under the Fourth Amendment, the Court has permitted warrantless searches. See Michigan Dep’t of State Police v. Sitz,, 496 US. 444 (1990). There, the Court found that a roadblock constituted a “reasonable” search due to the magnitude of the drunken driver problem and the deaths it causes — in fact, the court compared the death toll from drunk drivers to the casualties on a battlefield. Id. at 451. It found that this interest outweighed the intrusion into privacy at a checkpoint stop, which it characterized as “brief” in terms of duration and intensity. Similarly, [redacted] than in the case of a roadblock, where a [redacted] law enforcement officer stops each driver to examine whether they are inebriated. It seems that if the Supreme Court were willing to uphold drunk driver checkpoints, it would be equally or even more willing to allow [redacted].
Wow. That’s a lot of stuff, a long list of searches and seizures that don’t require warrants, and clearly conveys Yoo’s message that there are tons of times, tons of situations, where no warrant is required. And that’s why no warrant is required for mass surveillance.
The purpose of the list is to tip the scales of the balancing test of “reasonableness” in favor of the government’s “compelling interest” in protecting the nation from attack. Tim has some fun pointing out a few anomalies in Yoo’s examples.
According to the government, warrantless surveillance is a Terry stop… or a drug test performed on railroad workers… or a demand for records from a pawn shop.
Yoo expands on this rationale later in the letter, stating that warrantless electronic surveillance is really nothing more than a DUI checkpoint, but for terrorism.
Yoo, of course, isn’t arguing that mass surveillance is “really nothing more than a DUI checkpoint,” as such an argument would be facially absurd. Rather, he’s arguing that the warrant clause is ignored all the time, so why not now?
Of course, in each exception, there is a stand-alone rationale which may have no bearing whatsoever on the issue at hand, but the effort required to see through the laundry list is a couple orders of magnitude harder than compiling a bullshit list. So the laundry list method is not only superficially appealing, and thus effective, but too much work to deconstruct. But when someone argues by laundry list, you know they’ve got nothing, so they’re trying to bury the failure of their position under a big steaming pile of malarkey.
And lest you think Yoo is alone in his nefarious use of the laundry list, you know who else used this ploy for the unwary? But, unlike Mary Anne Franks, Yoo is a lawyer (though they both share the cloak of law prof today) and made his arguments to a federal judge. But then, 9/11 changed everything, including what constituted logical and legally sound argument.