I've a number of thoughts. I started to post a comment there, but decided not to cast my pearls before swine but to hide them here. (Actually, I'm too slow a writer to compose comments on this complex a subject, I need the time.)
His recent conceptualization of the issue, as stated here, seems to me to be an example of "tunnel vision".
"I'd like to focus a bit on the broader question of when speech during wartime is harmful to the war effort -- not necessarily when it's immoral, but only when it harms the war effort. To do this, let's first shift the discussion from the war on Iraq to World War II.How do I justify my "tunnel" description? The post narrows the issues to helping or hurting the war effort, ignoring (for the sake of discussion) the other benefits and costs of speech in relation to other goals. Implicitly the discussion is devoted to effects on us and our military and our enemy and its combatants, and to the course of the war, not to the longer history of our nation and the world
What speech (if any) by Americans during World War II do you think would have been harmful to the war effort, even if it weren't deliberately aimed at helping the Nazis win?"
But societies, as individuals, should be judged not only by what they achieve, but by how they achieve it. The test of morality is not only what you achieve, but how you achieve it. I seem to remember that Athenian democracy was overthrown in the Peloponnesian wars but the founding fathers remembered Athens more than Sparta.
It's an old chestnut, but true: adversity builds character. So too for societies. Taking the easy course would be, as Nixon so often said, wrong. In the 50's there was much argument over the virtues of totalitarian societies versus democracies. Many, such as Whittaker Chambers, believed that a totalitarian society was more efficient and effective than a democracy. Another example--the way we fought WWII was important. Putting Japanese-Americans in camps and dropping the A-bomb might have been important to the war effort, but they were lasting stains on our honor. We may have jailed Copperheads during the Civil War and Eugene Debs in WWI, but we've learned better. The short term gain in cohesion was outweighed by the betrayal of our ideals.
By giving priority to the war effort, one can justify X, where X may be limitation of free speech or war crimes. For example, in the battle of Fallujah, once the military had cordoned off the city and urged all civilians to leave, we could have saved many casualties by using gas. We, the world, have made the judgment that use of gas, even tear gas, in such situations is abhorrent. But when you take a longer and wider perspective you decide that the end does not justify the means.
Writing of "the war effort" implies that there is one effort by one actor--the nation. In another post Volokh talks of "the enemy". But that reification is misleading. We are individuals, as are our enemies. Based on my experience in Vietnam (noncombat), I'd guess this rule is pretty valid: the impact of anti-war speech on DOD employees is inversely proportional to their danger. In other words, as I've said elsewhere, Rep. Murtha didn't have much effect on a Marine rifleman, but he came close to ruining Rumsfeld's day. If you're in danger, your mind is focused on getting through the days. If you're up in the chain of command, you start worrying.
I suspect the same rule applies to the "enemy". The big bosses pay attention to what is going on within the opposite camp, but the peons don't. Didn't Hector know that Achilles was sulking in his tent? But the peons do know what concerns them--is the enemy treating captives well or poorly. Remember in the Civil War that the Confederacy threatened to execute captive black soldiers, leading Lincoln to promise reprisals.
All this may have changed some--given electronic media the ranks of our military and the enemy are more porous and open to new information than before. The spread of these media further empowers the onlookers--those in the Moslem world not actively engaged in insurgency, those in the non-Moslem world who have their own dealings with America and want to know what sort of polity it is, and those who have been friendly in the past who want to know whether we've changed. But that makes it even more important to adhere to our ideals, and to recognize that we define our ideals by the way we act under duress. (Also see Dan Drezner on this issue, as I cited here.)
Of course as always an underlying assumption, not raised in the discussions, is key: just how serious is the insurgency/Iraq unrest/war on terrorism? The pro-Bush conservatives agree with him that it's of life and death importance to the US. I disagree, believing that if you define a continuum between communism in the 1950's vis a vis the US and the IRA in the 1960's vis a vis the Protestants, Moslem terrorism is much closer to the second than the first. The real test of my principles would be whether, if I were the Brits in 1940, would I throw Oswald Moseley into jail?