Cowering Judge Richard Posner Advocates Secret Trials
Ronald Bailey | June 29, 2007, 12:17pm
High powered intellectual and federal judge Richard Posner is a very frightened man. So frightened that he apparently wants to ditch the Constitution. This is how The Australian reports Posner's remarks before a convention of Australian jurists:
A top-ranking U.S. judge has stunned a conference of Australian judges and barristers in Chicago by advocating secret trials for terrorists, more surveillance of Muslim populations across North America and an end to counter-terrorism efforts being "hog-tied" by the US constitution.
Judge Richard Posner, a supposedly liberal-leaning jurist regarded by many as a future US Supreme Court candidate, said traditional concepts of criminal justice were inadequate to deal with the terrorist threat and the US had "over-invested" in them.
Shame! Shame!
Unfortunately, we started down the road of eroded civil liberties with the passage of the 1996 Antiterrorism and Effective Death Penalty Act which allowed secret courts and secret evidence to be used to deport non-citizens on suspicion of terrorism or of supporting terrorism. But at least the law applied to just non-citizens. In 2001, it looked as though Congress might muster the courage to repeal this awful law.
After the September 11 atrocities, the Bush administration tried to arrogate to itself the right to determine if citizens were "enemy combatants" who could be held indefinitely without trial. In addition, the Bush administration authorized the illegal wiretapping of Americans by the National Security Agency. Judge Posner thinks that such wiretapping is just dandy. To get around caviling civil liberties concerns, Posner helpfully suggested new legislation that would somehow simultaneously protect American privacy and civil liberties while letting the Feds listen in on any conversations they want to without benefit of prior judicial oversight. This seems to me to be a flat-out constitutional contradiction, but then again, I am not a uber-intellectual federal jurist, so what do I know?
So let me turn to someone who was a fairly smart federal jurist who did believe that secret courts were anathema to the U.S. Constitution and to Americans. In 1948, Justice Hugo Black issued the majority opinion in the case of In re Oliver. In this case the defendant had been sent to jail on contempt of court charges by a Michigan circuit court judge based on testimony given the judge in secret. Black forthrightly declared:
The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet. All of these institutions obviously symbolized a menace to liberty. In the hands of despotic groups each of them had become an instrument for the suppression of political and religious heresies in ruthless disregard of the right of an accused to a fair trial. Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power...
It is 'the law of the land' that no man's life, liberty or property be forfeited as a punishment until there has been a charge fairly made and fairly tried in a public tribunal.
According to The Australian, Posner also has a dim view of the fortitude of his fellow citizens:
Judge Posner said the US temper and culture could not sustain repeated terrorist attacks.
Maybe not, but I think that there still plenty of Americans who are stirred by Patrick Henry's admonition:
Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!
Surely the risk of dying in a terrorist attack is worth taking if that's what is necessary to defend the liberties guaranteed by our Constitution.
reason's interview with Posner in happier times here. My earlier column on Posner's multiplying fears here.
TrickyVic | June 29, 2007, 2:03pm | #
"""Surely the risk of dying in a terrorist attack is worth taking if that's what is necessary to defend the liberties guaranteed by our Constitution. """"
Many people disagree.
I get what Dan T is saying. Most laws are about restricting freewill. Absoulute freedom is absoulute freewill. Of course we don't want absoulute freedom. I shouldn't exercise my freewill to kill anyone without being punished. That's a no brainer. Show me the law that say you can do X without placing some sort of restriction on doing X.
I view the freedom/security issue as being opposite ends of the same stick. The more you get of one, the less you get of the other. Freedom is the ability to chose. Security is the ability to remove choice. When you're pat down at a football game or any event, they are exercising their ability to remove your choice of what to bring in, of course, this is often a good thing. Going to a max security prison removes close to all of your ability to chose. As we move closer to the security end of the stick we move further away from the freedom end. But in the end, government can not protect you. That is what Franklin was talking about. You end up giving up your liberty for the false belief the government can protect you, therefore you end up with no freedom, and no security. It's not so much that you deserve neither, you GET neither. How often are people attacked in a max security prison?
9/11 made us move toward security and away from freedom to a significant degree. That was a few building and less than 3,000 people. It seem to scare the crap out of Americans, and look how the citizenry responded. A common statement I made after 9/11 was that I have never seen so many people pissing on the Constitution while waving the American flag. A common tactic is to scare you about something to get you to sign up for their anti-dejour march. Hell, Gore is using that tactic with global warming. So I think Dan is correct to think that an event of a much larger magnitude will push us closer to absoulute security than 9/11. I've hoped this effect will be temporary. I understand we will go through a knee-jerk period. If a major city is nuked, many will wipe their ass with the Constitution, and some of us will be called traitors and cowards because we refuse to do so and speak against their actions. The issue becomes who will prevail over time.
If you want to know want the country, in general, thinks about the Constitution, look at Ron Paul's poll numbers. He is the only person running on the I support the Constitution platform and he has very little support. On the other hand, Bush who supports anti-Constitutional actions was re-elected.
"""We will pick our asses up off the floor and come out swinging and build a better city in the place of what was. It is the power of the document which has brought us here, it will be the power of the document that will see us through."""
Cecil, that is the right way of looking at it, but who in government or on TV is saying that? Certainly they are not building a better World Trade Center.
power forward | June 29, 2007, 2:09pm | #
Judge Posner, and anyone who may agree with him:
Calm down. Breath slowly into this paper bag. Let me say some soothing words.
I know it seems scary, but honest to gosh, we're not about to be wiped out by terrorists out here in the good old homeland. Oh yes, there are lots of people in the world angry at us, but see, the vast majority of them are poor, far away, and even if some small amount of them would seriously be willing to come over here and try something, they have very little ability to do so. The enemy's ability to hit us away from their home turf isn't all that impressive. So far the worst thing "they" have managed to do to us is kill a few thousand of us. In a surprise attack.
In the other corner, there's us. There are 300 plus million of us, we're the wealthiest nation in the history of the world, we occupy a huge territory that would be very difficult for an occupying force to take over, and by the way we are armed to the effing teeth.
Let's be clear here. There is no "terrorist" threat on earth today that poses an existential risk to the United States. The very worst thing that anyone can do is commit small acts of violence that may be dramatic but kill small amounts of people at best. I'm not saying that's nothing, or that we shouldn't care, but we need to have some perspective here. The purpose of these attacks is not defeat us militarily but to scare us. That's why it's called "terrorism."
So you see, it's crazy to talk about how we have to give up our Constitutional rights to save our asses because otherwise the terrorists will take over and then we'd have no Constitutional rights at all. We're not "losing." We're not going to lose. Brown people in unfamiliar dress are not going to come over here, take over the country by force, and take away our freedoms. Only we can do that.
If we've all stopped hyperventilating by now, let me make a request of everyone. GRAB A NUT.
The freedoms we have under our Constitution are what makes us American. They matter. Our colonial forefathers were willing to die for those rights. When Patrick Henry said "give me liberty or give me death," there was actually a decent chance he was going to get death. The least we can do as the heirs to that legacy is stand up and say the same thing. In our case, the odds of any particular one of the 300 million of us actually having to do so are vanishingly small.
Fluffy | June 29, 2007, 5:27pm | #
"Look at what happened after 9/11 - and that was just a couple of office buildings being knocked down. You really think that if the deaths had numbered in the millions instead of the thousands we'd still be sitting around debating the merits of the Gitmo prison or terror suspects being held without lawyers?"
I think that
by 2007, yes, we would have been.
I think this for the simple reason that we've been trying brutality, and it's not working.
If it had been a nuclear device on 9/11 I think we would have tried even more brutality, sooner, and that brutality would have failed to produce the desired result even sooner.
That's the point often left out of these freedom vs. security debates - the fact that the iron hand fails.
We have over 100,000 guys on the ground in Iraq kicking in any door they want, bombing any house from the sky they want, having one Iraqi ally group or another death squad anyone they want, and it's
just not enough. In Israel they kill at will, build better security systems than we do, build walls wherever they want, invade Lebanon whenever they want, bulldoze whatever they want, etc., and it hasn't worked.
If brutality was the way to go, the US shouldn't even exist.
James Anderson Merritt | July 1, 2007, 6:00pm | #
Does anyone think we would have jihadists over here if we had never posted military in the middle east, or if we had never been deeply involved in financing and supporting certain sides in various middle eastern conflicts and enmities, at the expense of others? I suppose some irate middle easterners might be shouting "death to Exxon" or something like that, but would they be shouting "death to America"?
I think one of our biggest problems is that our elected officials do not get out of bed in the morning saying to themselves, "what can I do today to help the people I serve have and enjoy more freedom?" That should be job #1 for every one of them. If our government pursued foreign policy with that question at the forefront, I think it would necessarily conduct itself on the world stage in a very different way, and we would be freer, safer, and more prosperous as a consequence. Instead, our liberties appear to be negotiable, things to be traded away if they might purchase some alleged increase in security or GDP. I'm not surprised that those who gravitate to positions of power adopt such views. But I am a little surprised and deeply disappointed that the people put up with it. These officials are our employees. If they don't frequently and publicly declare that their job #1 is as I described above, and if they don't work hard enough to demonstrate their attention to job #1, we need to fire them and find employees who will take that job seriously and do it well.
The US was deliberately designed, from the start, to be a different kind of nation. When people exhort us to be more like some other nation or group of nations, especially at the cost of any of our liberties, they are not behaving as friends of America or liberty should, and we do ourselves and our country a great disservice to take them seriously.
Our foreign policy should focus on maximizing individual liberty at home; projecting empire around the globe, history shows, eventually achieves the opposite. We are now doing -- and for many decades have done -- things overseas that have made a lot of enemies. Those enemies bear full responsibility for anything bad they do to us, but we need to take responsibility for doing things that 1) make them angry enough to attack us in the ways we have seen recently; 2) make ourselves eligible targets as they act out whatever rage has been festering in their hearts, which we did nothing to inspire. The most important way we can take responsibility is to understand what we are doing that inspires the reactions we are getting, and to quit doing it, turning instead to other methods and approaches that get us what we want and need without reducing -- and ideally, by enhancing, the liberties of all Americans. That task is not easy. It's apparently a lot easier on the politicians to have the US behave like any other nation, but if we settle for that, we should be ashamed.
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