Glenn Reynolds & Helen Smith Interviewing Judge Posner,

linked to here. Cool.

John (mail):
The podcast EV links to is absolutely terrific. It's pretty much all Posner. I think summarizing it cannot do it justice, but here are some of the points he makes:

1. Judges are not well versed on terrorism. They are on civil liberties. Thus they tend to give more weight in their thinking to the latter. We only have "generalist" judges (with a few exceptions), and don't have a court specializing in national security, like, e.g., the French (he talks about why the FISA court is not such a court).

2. There are two prevalent metaphors for dealing with the terror threat--all out war (the WWII metaphor) or police action (the crime metaphor). However, unlike WWII, we can't always tell who the enemy is; and our criminal justice system is designed not to prevent all crime, but to control it to acceptable levels. We need an approach gauged to prevention.

3. The worst thing that could happen to civil liberties is another attack. Many civil libertarians lose sight of this.

4. Many civil libertarians are in denial. They must diminish the severity of the threat in order to be convincing that the government needn't be as active as it is trying to be. Sometimes they seem simply nostalgic for the days of McCarthy.

5. People never had the degree of privacy they have now (he gives telegraphs and party telephone lines as examples). Moreover, people today give up their privacy routinely and often in trivial circumstances. Whenever you order from Amazon, you are aware a database is being tweaked about you; all your emails from your employer are totally open to his inspection, etc.) A small reduction now is not a big price to pay.

6. His suggestion: (a) liberal government surveillance for national security, (b) no use of anything discovered for any purpose (i.e. prosecution) beyond national security, and (c) careful records kept of the surveillance that would be reviewed by some one, e.g., some Congressional committee, to insure the surveillance was being done for national security purposes. He recognizes that there would be abuses, but seems to hold the view than nothing will be free of some abuses. Posner takes the view that the Constitution can easily allow for this program.

In all, it was a fascinating talk, with very engaging disucssions of some foreign approaches, some English history, and a brief discussion of current events in terrorism, from Heathrow to Judge Taylor.
8.29.2006 5:33pm
M (mail):
Posner is reported to have said or impled that, "The worst thing that could happen to civil liberties is another attack. Many civil libertarians lose sight of this." This is, of course, not by any means a necessary truth. The thinking is much like those who say that we should limit race mixing since if we don't we'll have a race problem. (Please note that I'm not in any way implying Posner is a racist- I'm not a fan of his but I have no reason to think he is a racist.) Both sorts say, "we must do something bad now since if we don't, we are likely to go crazy and do something even worse." But why think we _must_ do something worse or over-react in the case that something bad happens? Why not, rather, face both the real threats now, and the possible danger later (much less danger than most of us face from ordinary things every day- the terror in terrorism is mostly psychological) like grown-ups? As it turns out, many places were able to have racial integration and not have racism go out of control. If we face the issue like grownups we could even survive another attack, bad as it would be, and not throw away democracy and freedom. But for that we'd need statesmen, not demagogs or fear-mongers. I'm sorry not to see Posner come out more clearly on the right side here.
8.29.2006 5:48pm
Just an Observer:
Posner is famous for his results-oriented legal reasoning. His basic thesis in his recent writing and in this interview is that more surveillance is, a priori, both necessary and better. He indicates that somehow it can all be legal. But, at least in the podcast, he doesn't get around to saying how that is so.

It is no intellectual revelation to say there is a balancing to be done between civil liberties and security. It is rather more difficult to grapple with real tradeoffs. My own feeling is that these are best considered on the margin, point-by-point, instead of starting with some sweeping principle about maximizing security and letting all policies flow downward from that.

The immediate issue today is whether and how to amend FISA. If that issue were approached as a reasonable debate instead of a partisan wedge weapon, the proper policy analysis would be ground-up from the details. And not all those details need to be secret. Of course, that is not happening.
8.29.2006 6:00pm
te (mail):
Posner sounds like some wild-eyed big-gummit liberal. My favorite being that the constitution is a "loose garment, not shrink wrap."
8.29.2006 6:34pm
I'm hardly going to let the people who want to take away my civil liberties blackmail me by saying "If there's another attack, we're going to blame you and then take away even more of your liberties!" It's pretty clear that liberals will be blamed by some for whatever happens in the world, so I don't see why they should be particularly concerned about the prospect.
8.29.2006 6:39pm
John (mail):
I agree that Posner's comment about the "next attack" reducing civil liberties is not very persuasive. On the other hand, what he actually proposes--government surveillance that can lead nowhere but to greater security, and to no publicity or criminal prosecution except for endangering national security, all subject to oversight by another branch of government--doesn't seem much more intrusive than letting the IRS know all about my finances. Maybe less so.
8.29.2006 7:12pm
government surveillance that can lead nowhere but to greater security
and a pony!
8.29.2006 7:29pm
srp (mail):
We ought to be thinking about specific forms of abuse of surveillance data and how to prevent/mitigate those, rather than arguing in general about privacy. Posner's specific suggestions, while not original, are a start on constructing a regime in which widespread surveillance for terrorist plots does not lead to the destruction of our freedoms. (I should point out that Posner has always been hostile to the idea of a legal right to privacy, finding it incoherent and impractical. I would not go so far, but I do think that too often privacy is invoked in a way which diminishes free-speech rights and other individual rights.)

To those who think we can just tough out the threat of mass casualty attacks without changing any of our laws because the statistical probabilities are low, you have a) way more faith in the ability of the public and its legislators not to panic after an attack and b) way less understanding of the endogenous nature of terrorism than you should.

On a), it makes sense to me to cooly consider the least intrusive way to do surveillance rather than wait until after a catastrophe and legislate in the middle of a media frenzy. On b), the statistics are not exogenous and independent, like car accidents or slips in the bathtub. The terrorists will try to exploit our weaknesses and scale up their attacks until and unless we stop them. It is a game-theory problem, not a statistical decision-theory problem.
8.29.2006 8:24pm
The Original TS (mail):
Posner completely misses the elephant in the Civil Liberties v. Security debate.

Security measures that greatly increase security may be acceptable even though they have a substantial impact on civil liberty.

Security measures that do not increase security are not acceptable even if they have only a de minimis impact on civil liberty.

Unfortunately, a great many new security measures, at least the visible ones, fall into the second category. Just as one example, all shoes must now be x-rayed. This is despite a recent study (commissioned by the government) concluding unequivocally that x-raying shoes is not effective at detecting bombs.

The decision to require all shoes be x-rayed was driven by political concerns, not security concerns. The TSA wanted to be seen to be doing things "to increase security" regardless of whether those things actually increased security or not.

We must always keep in mind that the people making these security decisions are not detached philosopher-scientists, they are government bureaucrats, driven by all the multiple agendas that drive all bureaucrats. Their decisions ought to be subjected to vigorous public scrutiny and debate. Instead, pretty much any half-baked decision they make becomes instantly unchallengable when wrapped in the mantle of "fighting terrorism."

Posner is wrong. The courts are not deferrential enough to civil liberties concerns. Rather than pandering to the current state of bureaucratic ineptitude, the courts ought to be doing more to ensure that the security regulations being generated by the TSA and its sister agencies actually do increase security.
8.29.2006 8:33pm
Donald Kahn (mail):
Most of you weren't around when the attack on Pearl Harbor led to the gross injustice of internment of all Japanese, citizens or not, living on the West Coast.

Pearl Harbor was the first incursion on American soil since 1814. It was no more serious a matter than 9/11.

Judge Posner has it right. Another such outrage, and the people won't be asking the brilliant minds represented here, what should be done about it.

The first duty of a state is to protect its people. If that requires (what may now be considered) extraordinary surveillance, so be it. When we have overcome the threat, then we can resume splitting hairs.
8.29.2006 8:41pm
M (mail):
I'm glad that Donald was willing to actually go put things in the racist terms I'd mentioned. Last time we did something awful and shameful that had no reasonable rationale or beneficial result. God help us, if we're attacked we'll do that again! That will show them all! I'd like to think that maybe this time we could find some statesmen of the sort so dearly lacking with regard to the Japanese internment, but I rather doubt we will.
8.29.2006 8:50pm
Brian B:
When and if (I obviously hope it never occurs) the first suicide bomber hits somewhere in the U.S. (at a restaurant, theater, shopping mall), there is no question that the average person will jettison any concerns about governmental overreaching and will demand a crack down that will make the Patriot Act look like a joke. This is a given and is, in my opinion, undeniable. And it will be the result, in no small part, of the concern for the "rights" recently discoovered for enemy combatants (who used to be shot immdeiately when discovered during a war) and terrorists.
8.29.2006 9:06pm
Yes, doesn't everyone remember those wars where we immediately shot American citizens based on the government's say-so that they were enemy combatants?

The balance between liberty and security has clearly shifted very far towards the security side since 9/11. This, in itself, is neither surprising nor particularly alarming.

What is rather shocking is that some people pretend as if nothing has changed. During the 1990s, considerable hue and cry was raised over legal surveillance by the Clinton Administration, by anti-government conservatives as well as by civil libertarians. Whereas in the present climate, the dispute over Bush's NSA program solely revolves around whether a warrant system should be in place, to ensure that only legitimate terrorism investigations are taken place.

Virtually no one is arguing that the surveillance in question should not even take place in the first instance. That's a significant change in the public mood.

The Original TS makes a strong point. Most people have a low tolerance for bullshit. When New York City instituted a policy of random bag searches for subway riders, very few residents were upset because they viewed this as an unreasonable burden. Rather, the majority reaction was that it was a stupid measure because it would be worthless for preventing or deterring terrorism. A terrorist, entering the subway station with a bomb in his backpack, would simply note the presence of police officers conducting random searches and walk a few blocks to the next station, where no searches are taking place. If you're going to interfere with our liberties, at least do so in an effective way, please.
8.29.2006 9:33pm
Henry679 (mail):
I listen to most of Posner's interview, which was generally good, but it had some gaping holes in it, which indicate "civil libertarians" are not the only ones in that famous Egyptian river.

For example, he cited as a possible course the US might want to considering emulating from Europe is the 28 day holding without charges in "terrorism" cases that the UK employs (most recently in the airliner plot). Fine, let's discuss it and pass (or not pass) legislation authorizing the same. But the present administation didn't take this course. Instead it insisted upon, and its usual apologists swore allegiance to, the following position: "Hey, we can detain anybody we like, including citizens, FOREVER, without charges, cuz the Prez sez so!" This is what the supposedly deluded "civil libertarians" (who ran the political spectrum) were up against, not Judge Posner's well-deliberated, measured accomodation to "new realities". Yet, from what I heard, there was no ackowledgment of this from Posner.

Similarly, he argued, not unpersuasively, that an expectation of "total" privacy was relatively new for electronic communications (it didn't exist with telegrams or "party line" telephone service), so rolling this expectation back a bit would not necessarily be "Orwellian" IF it was part of a system that strictly limited the use of such intercepted/overheard communications to terrorism cases. Uh, Judge--who's in denial now? The nation was sold the "Patriot Act" and the huge new bureaucracy of "Homeland Security" with same tag line: "We need new tools for this new threat!" Then the government promptly turned right around and used both as part of its general police powers to catch non-terrorist alleged "bad guys" like white collar criminals and strip club owners in Vegas. Unless Posner thinks the current adminstration is just a bunch of exceptional would-be authoritarian thugs (a plausible argument), what confidence should we have that this increased surveillance will be limited in the manner proffered by Posner under ANY adminstration? I'd say about zero.

There is plenty of denail to go around these days, Judge.
8.29.2006 10:02pm
Henry679 (mail):

Pleanty of typos to go around, too! Sorry.
8.29.2006 10:04pm
eddie (mail):
First, I am surprised at the deafening silence from originalists in the face of Posner's concept of a loose-fitting constitution.

I am even more surprised at the deafening silence at Posner's dismissal of the consitution as a quaint 18th century artifact.

But what is most assuredly distressing about Posner's opinions is that it is based upon . . . was that reasoning . . . was that precedence . . . was that divine revelation . . . or perhaps a debilitating fear in the face of a terrorist act . . . and still an uncritical silence.

In times of war there is no law but the leader's. And our independent judges are not to be any balance or check on the supreme power granted to the leader and uncritically necessary for our very survival. And several hundred years of judicial tradition must be discarded. Is that what enlightened democracy is all about? And is this really a defense against terrorism or a complete surrender?
8.30.2006 2:19pm
kelvin mccabe (mail):
Good point Eddie: At what point on the liberty v. security line does the following statement become redundant: "They hate us for our freedoms."

We fight islamofascists over there so we can become security fascists here at home? Wonderful. And I agree that Judge Posner's views are rather disturbing...considering his position on the 7th Cir.

And yes, most criminal practitioners by now have at least one case or story about some random drug case or whatever in which homeland security/GWOT was somehow involved. I worked on one that invovled marijuana, a Uhaul locker, and a strange smell (not so strange considering the source) No warrant search was eventually quashed, but this was State court in Chicago and the "it could have been a chemical dirty bomb, hence exigent circumstances" excuse didn't fly. A different situation could have resulted if the manager and police didnt testify that the smell coming from the locker was like marijuana. (i.e, if they would have simply said it smelled like chemicals or something unknown). Its only a matter of time.
8.30.2006 5:21pm
David M. Nieporent (www):

First, Posner has never been an originalist, so there's nothing unusual here. He has been a self-described pragmatist his entire career.

Second, I believe Posner thinks that the legislature, not the judiciary, provides the appropriate check on executive power in wartime.
8.30.2006 6:48pm
IronyAbounds (mail):
Second, I believe Posner thinks that the legislature, not the judiciary, provides the appropriate check on executive power in wartime.

And the evidence for this over the last 5 years is exactly what? This Congress has been a complete lapdog to Bush and to suggest it has provided ANY check on Bush's actions is laughable (btw, we could be talking about a Democratic Congress and a Democratic President and the result would be the same). I realize the notion of an apolitical judiciary is naive at best, at least there isn't monolithic control of the judiciary by ideologues on either side, so the judiciary may be the only check where the legislative and executive branches are controlled by the same party. I'm most disturbed by the comment about the Constitution being a quaint 18th century document. The problem isn't the Constitution, it's the bad faith actions of those who are willing to ignore it because they think they have all the answers. The last five years have been an Executive Branch power grab engineered primarily by Dick Cheney who seems to think that power should be limited to those few like himself know all and see all.
8.30.2006 8:25pm
David M. Nieporent (www):
And the evidence for this over the last 5 years is exactly what? This Congress has been a complete lapdog to Bush and to suggest it has provided ANY check on Bush's actions is laughable (btw, we could be talking about a Democratic Congress and a Democratic President and the result would be the same).
I didn't say that Congress had checked him; I said that Congress is the appropriate institution to provide the check. The point is to contradict when appropriate, not to contradict for the sake of contradicting. Maybe they, you know, agree with the administration in this case. That doesn't make them "lapdogs."
8.31.2006 2:25am