Cowering Judge Richard Posner Advocates Secret Trials

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.

Comments

[J sub D]

This scares me. Really.

[ChicagoTom]

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God!

Really, shouldn't we let the market decide what price we are willing to pay for life and peace? Why would we want God regulating it??

Seriously, how did our "great legal minds" become such fucking bed-wetters?

The terrorists may not have already won, but they sure seem like they are up by a big margin at the half and our team is ready to quit and go home.

[ChicagoTom]

Really, shouldn't we let the market decide what price we are willing to pay for life and peace? Why would we want God regulating it??

Should have been followed by:

</bad snark>

Although, now the joke has become unfunny. apologies

[Chris S.]

Posner is a liberal-leaning jurist? WTF? Posner is a right-leaning utilitarian. A "law and economics" guru who, unfortunately, has a very simplistic grasp of economics and human behavior.

This has always been the case. His most recent statements are everything but surprising.

[carrick]

You don't know how lucky you are boy Back in the U.S.S.R.

[cecil]

WTF happened to Judge Posner?

He (is) was the voice of the law and economics school of thought.

Maybe the article has got it wrong, after all it said he was "liberal", unless he/she is the one reporter left in the world who still means "classical Liberal" when he/she writes "liberal", this reporter is likely a dolt.

[Dan T.]

While I certainly share the concern over secret trials and other such developments, I do think the "give me liberty or give me death" philosophy misses out on the fact that liberty and freedom are not absolutes, but measured in degree.

What I'm getting at is this - let's say the worst case scenario occurs and a terrorist detonates a nuclear devise in a major US city. At that point, you'll be able to use the Consititution to wipe your ass but that's about it - the American way of life will simply cease to exist and who knows exactly what will replace it.

So, is there not a case to be made that by restricting liberty a little now, it will prevent us from having to restrict it a lot (or lose it all together) in the future? I think so.

After all, every law is a restriction of liberty, and very few of us argue for pure anarchy. The question is where you draw the line.

[NoStar]

Anyone else remember a Michael Douglas movie called The Star Chamber?

http://www.imdb.com/title/tt0086356/
Or just click on my name.

I usually am not impressed with Hollywood remakes, but now would be a good time for this one.

[D.A. Ridgely]

Once again, the right-wing / left-wing dichotomy breaks down (see the earlier LaRouche thread) when it comes to Posner. He's a brilliant, (far too) prolific writer who long ago opted for quantity over quality in his work product. He's still head and shoulders smarter than the vast majority of his fellow judges and I'd like to have seen him on the Supreme Court, but that says more about the judiciary than about him.

[ed]

The chains Henry spoke of were British, not American, so the quote is not altogether appropriate in the current context. But the sentiment applies, sort of.

[Ron Bailey]

Dan T. So you're willing to submit to light chains and just a bit of slavery?

OK that may not be fair, but the fact is I own a place in downtown DC (otherwise known as ground zero for a terrorist's nuke) and I spend a good deal of time there. I am not a super brave guy, but I am more than willing to take the risk that I might get blown to smithereens by a terrorist attack if that will stop the establishment of secret courts, secret surveillance, and secret detention in the US.

[Bronwyn]

Dan T.: every law is a restriction of liberty

*blink*

*blink**blink*

*crickets*

That statement doesn't even dignify a response, it's so moronic. Oh well, you're nothing if not predictable. Good job.

[Pro Libertate]

I don't think the Constitution goes out the window even if NYC or DC gets nuked. We might have some martial law in the affected area and mass panic everywhere else, but I think the republic is strong enough to handle a disaster of that order.

Most libertarians don't advocate infinite freedom. Cooperating through government to limit certain actions fits within the modern libertarian value system. Murder is a crime that can be punished. And so on. Still, the only way that we can really be free and truly happy is to have a limited government. One that acts openly, with accountability. One that is legitimate. One that has clear and restricted powers. Anything else is neither useful nor conducive to human well being.

Besides, what's so scary about some half-assed terrorists that we're willing to curtail liberties that withstood the almost infinitely greater threat of the Cold War? This is nonsense, and Posner again shows that he's lost his way.

[cecil]

Dan T. - if a US city gets leveled by a nuke, we will not wipe our ass with the Constitution.

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.

Why are you so willing to give up your freedom?

Why does freedom scare people more than tyranny?

This is friday and you're disgusting lack of fortitude is making me sick and potentially ruining my weekend. So I am out of here, have a nice weekend freedom loving H&R folks.

And Dan T. (T is for Talosian):just to show you how primitive we are, you have a nice weekend too.

[J sub D]

What I'm getting at is this - let's say the worst case scenario occurs and a terrorist detonates a nuclear devise in a major US city. At that point, you'll be able to use the Consititution to wipe your ass but that's about it - the American way of life will simply cease to exist and who knows exactly what will replace it.

Not necessarily true. One major American city would unquestionably piss off the Americans no end. I wouldn't want to be a practitioner of Islam (a religion of peace) in that case. Throwing away, vice amending, the constitution is hardly inevitable.

BTW, In relative terms, the death toll of a major U.S city getting nuked would not equal the death toll of the 1918 flu epidemic. I'm just putting things in perspective, not sugarcoating the very real danger of the aforementioned (evitable?) attack.

[Alan Vanneman]

What is the deal with Posner? He is an extremely rare breed, a libertarian right-wing Zionist. His concern over terrorism is just a cover for his fear that weak-willed liberals will abandon Israel rather than fight the tough fight. Therefore, Americans need to be told that we face an unlimited emergency, that Islamic terrorists are an even greater threat than either the Nazis or the Communists.

In his defense of Supreme Court's decision in Bush v. Gore, Posner argued that it is the duty of elites to tell the masses "necessary" lies, because the common folks just can't handle the truth. Whenever you read anything by Posner, remember that he reserves the right to lie whenever he feels it's "necessary."

[Benjamin Franklin]

"Those Who Sacrifice Liberty For Security Deserve Neither"

[Dan T.]

Dan T. - if a US city gets leveled by a nuke, we will not wipe our ass with the Constitution.

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.

I'm afraid I don't share your optimism.

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?

[Jew]

BOO!

[MikeP]

Since cecil broke the ice, I must ask... Did The Australian report that this Judge Richard Posner had a dark mustache and goatee?

[de stijl]

Wanna get really scared?

A sitting Supreme Court Justice recently advocated that we should base our anti-terrorism judicial framework on (every torture proponent's favorite show) 24.

Link only shows the first paragraph, but Google "Scalia 24 Canada" will show the full article.

Why did this get no play in the US media?

[MikeP]

Look at what happened after 9/11 - and that was just a couple of office buildings being knocked down.

That was a failure of leadership.

Bush could have united the nation and the world in a war of civilization against barbarism. He didn't, opting instead for a "for us or against us" foreign policy that named far more enemies than the US actually had. That foreign policy leaked into domestic policy in unpleasant ways.

Such a result was not in any way inevitable after 9/11.

[Chris S.]

Once again, the right-wing / left-wing dichotomy breaks down (see the earlier LaRouche thread) when it comes to Posner. He's a brilliant, (far too) prolific writer who long ago opted for quantity over quality in his work product. He's still head and shoulders smarter than the vast majority of his fellow judges and I'd like to have seen him on the Supreme Court, but that says more about the judiciary than about him.

I can't agree with you. Posner has, and always has had, very little regard for legal principles. He's wont to treat everything from statutory law to constitutional law as common law.

Frankly, that's the nature of the law and economics movement as a whole; it's as much an outgrowth of legal realism as uber ridiculous crit theory, and it suffers from the same arrogance, lack of principles, and failure to observe the limits of judicial power.

[tarran]

Libertarian Utilitarians are only "libertarians-of-convenience".

Posner's notions are no different than some overwhelmed mother killing her babies to "save" them.

[Randolph Carter]

I think that philosophically it boils down to whether your ideas are consequensialist or rights-based.
I think a lot of jurist types believe that the Constitution and Bill of Rights were good because they promised the best possible outcomes, not because they protected the inherent god-given rights of man. When the possible good consequences are drawn into question by a threat like terrorism, they are more than willing to throw rights to the wind in hopes of better outcomes.
The sad irony is that there is no evidence that limiting or abolishing rights will guarantee better outcomes, just a hope and a glimmer in the statist's eye.

[Chris S.]

Also, I can't agree with any of the above attempts to state that he has a libertarian streak. Since when? Just because he identifies with supply side economists doesn't mean he's a libertarian (at all). Also, he's a lawyer because he would have made a shitty economist. As far as 7th circuit judges go, Easterbrook is a better economist.

[MikeP]

Randolph Carter,

You have a good point. I am one whose ideas are consequentialist but who believes that rights are a generally correct and more usable heuristic.

I would say that the consequentialist who thinks it is worth throwing away rights over this issue is not ascribing a high enough cost to handing such unrestrained powers to the state.

[Randolph Carter]

maybe a better way of putting it is "short-sighted consequentialist" or "historically ignorant consequentialist"

[J sub D]

Benjamin Franklin | June 29, 2007, 1:02pm | #

"Those Who Sacrifice Liberty For Security Deserve Neither"

Yes, I'm aware it's apocryphal.

[henry]

Posner may be a rightwing/libertarian/utliitarian /whatever jurist, but he is an obvious neo-con on the international scene, which pretty much tells you all you need to know on this score: we must secretly try, imprison and torture all the dirty Arabs/Muslims because it will be the end of the world (i.e. Israel) if we don't.

People don't want to hear this argument, but after seeing otherwise inexplicable example after inexplicable example (Dershowitz immediately comes to mind), it is kind of hard to ignore the obvious.

[Randolph Carter]

P.S. I'm not talking about you, MikeP, but asshats like Posner.

[MikeP]

Thanks, Randolph, I realize that.

Your "short-sighted consequentialist" or "historically ignorant consequentialist" are very good ways to put it. The future is extremely long, and exponentials have a way of overwhelming present day costs.

[D.A. Ridgely]

Chris S:

Don't worry, people disagree with me all the time. The law and economics movement was (and still is) actually an attempt to find rational, objective standards as legal principles after the demise of natural law theories. Otherwise, we're pretty much left with the Crit's perspective that law is merely politics by other means.

[Troy]

'scuse me but what is the point of a "secret Court?" I take it that this coward's issue is that the mockery and oxymoron that is the current criminal justice system provides way too much procedural and substantive due process that gets in the way of the end. The end being the prosecution or murder, er... I mean the justified homocide of alleged terrorist suspects.
Why screw around with some kangaroo court? Just shoot them on site. That'll learn them. And we will all be safer with this form of justified homicide done in our name.
We used to make fun of the Soviet Union because they did this kind of shit. Not having an advesary to distinguish ourselves against is going to lead us from the soft totalitarian state we live in to something worse.

[carrick]

The question is where you draw the line.

The answer is probable cause. That answer the result of hundreds of years of enlightenment.

Please don't trash it because you can't comprehend basic statistics and the fact that you are several orders of magnitude more likely to die in a car crash than a terrorist attack.

[henry]

"Otherwise, we're pretty much left with the Crit's perspective that law is merely politics by other means."

Please reread the Supreme Court's decision in Bush v. Gore and then attempt to proffer an explanation that is anything other than what the "Crits" maintain.

It is time to grow up, children.

[crimethink]

Dan T, are you aware that our national capital has been sacked and burned to the ground by a foreign power after the Constitution was ratified?

[Abdul]

PArt of Posner's arguments over the years about terrorism is that many of the anti-terrorist strategies that we've had constitutional problems with are practiced in Europe (which is widely regarded as a free society) with almost no hue and cry. For example, we've had constitutional gripes over warrantless wiretapping of phone conversations between a US citizen and a non-resident. In Europe, wiretaps--even on citizens--are far easier to get.

[Randolph Carter]

Secret trials exist to create "unthinkable" crimes. Like being a heretic in the 1400s. You only go to secret trial for a crime that's so bad that it's unbelievable anyone could commit it.

[carrick]

Let's not forget due process either.

[henry]

Abdul,

So let me get this straight--now we ARE looking to international practices to adjust our own Constitutional jurisprudence?

I must have missed the memo when that became the "conservative" line.

[ChicagoTom]

Dan T, are you aware that our national capital has been sacked and burned to the ground by a foreign power after the Constitution was ratified?

Yeah, but that was a looooong time ago. And they didn't have NUKES and DIRTY BOMBS back then. THIS IS A DiFFERENT KIND OF ENEMY/THREAT!

BOOGA BOOGA BOOGA!!

[Grotius]

D.A.R.,

Much like confronting Descartes' "demon," one would seemingly have confront the "crit perspective" argument first.

[TrickyVic]

"""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.

[crimethink]

What really intrigues me is that Dan T, who (along with me) defended the Pledge from its denouncers on that other thread, saying that if you don't want to say the Pledge you should leave the country, now thinks nothing of wiping his ass with the constitution.

[power forward]

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.

[carrick]

The progression of technical innovation is making it easier and easier for fewer and fewer people to conspire to commit more and more horrible attrocities.

In the not-so-distant future, one person with the appropriate skills will be able to commit an act of violence that results in hundreds of thousands, if not millions, of deaths.

The only way to prevent this from ocurring is for the state to monitor every individual every minute of every day, forever.

So Dan T. are you ready to sign up for your tracking implant?

[crimethink]

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.

That's an awfully simplistic viewpoint. Freedom and security are, to begin with, very difficult to define in practice. Furthermore, you're ignoring the fact that there are situations where both freedom and security are enhanced by the same phenomenon (eg, widespread gun ownership).

Also, keep in mind that true security includes security from those with and without badges. I don't think people living in a totalitarian state, fearful of the secret police at every turn, could be considered either free or secure, despite the minimal incidence of crime in such societies.

[Dan T.]

What really intrigues me is that Dan T, who (along with me) defended the Pledge from its denouncers on that other thread, saying that if you don't want to say the Pledge you should leave the country, now thinks nothing of wiping his ass with the constitution.

No, I said that's all the constitution will be useful for if a worst-case scenario was to occur. Meaning that nobody is going to care about it.

I'm not happy about that, but I think that's the way it will be.

[Sal Paradise]

"So, is there not a case to be made that by restricting liberty a little now, it will prevent us from having to restrict it a lot (or lose it all together) in the future? I think so."

Restricting or eliminating freedom still does not guarantee a terrorist won't successfully use a nuclear device. Once again, you present a false dichotomy.

I'm starting to think Dan T. is a Logical Fallacy Bot.

[crimethink]

Dan T,

If our nation is so fragile that a nuclear attack in one city is going to lead to anarchy, well, it's bound to fall apart anyway. Might as well get it over with sooner rather than later.

[Taktix?]

I'm starting to think Dan T. is a Logical Fallacy Bot.

Yes, it's the Self-Aware Wikipedia's first strike.

[Dan T.]

Please don't trash it because you can't comprehend basic statistics and the fact that you are several orders of magnitude more likely to die in a car crash than a terrorist attack.

This is kind of insulting - of course I'm able to "comprehend" that. But I'm concerned with more than just my personal demise. NYC being nuked would affect us all greatly even if we don't live there.

[Dan T.]

Restricting or eliminating freedom still does not guarantee a terrorist won't successfully use a nuclear device. Once again, you present a false dichotomy.

I'm starting to think Dan T. is a Logical Fallacy Bot.

Well, nobody said that it would. You present a straw man argument.

[Dan T.]

Dan T,

If our nation is so fragile that a nuclear attack in one city is going to lead to anarchy, well, it's bound to fall apart anyway. Might as well get it over with sooner rather than later.

I don't know if it will lead to anarchy, but you can bet that the population as a whole will very much be in favor of doing whatever is necessary to prevent anything like it from happening again.

[thoreau]

Judge Posner said the US temper and culture could not sustain repeated terrorist attacks.

Well, 9/11 persuaded a respected judge that our tradition of open trials is unsustainable. So maybe he's right.

I fear the bedwetters because in a way they are right, or at least they will be right if there are enough of them: Terrorists could destroy our way of life and take away our freedom. But they will only cause these things to happen if we do it to ourselves in response.

[Dan T.]

I will add this - rather than restricting liberty, I think a better plan is to stop doing things as a country that piss so many people off.

[AndyJ]

Please tell us how we fight terrorists as a police action with open courts, named witnesses, revealed methods and unintimidated jurors?

We have failed to stop the Mafia with these methods. They slowed only by becoming successful. The same with the Chinese and Russian gangs...

The people who flew the airplanes into buildings did not do so for money. They cannot be stopped by the absorption of wealth.

How do we stop them?

Police investigate crimes AFTER they occur. How shall we prevent slaughter of ur citizens?

Its nice to be safe, snug, secure in a world where everyone plays by the rules... Unfortunately, that artificial world only exists because a few do the ugly and necessary work of keeping you safe.

[Russell]

Thanks to Ron for bringing the
'1996 Antiterrorism and Effective Death Penalty Act'
to my attention.

The House Committee On The Judiciary somehow neglected to mention it was in the works when urging me to testify about
'The Comprehensive Antitertorism Act of 1995'

[thoreau]

Police detectives keep lots of matters confidential during the investigative phase, AndyJ. They only show their evidence in public once they have a case.

And gangsters are more numerous than ideological terrorists because gangsters make money in black markets and steal as well. They're self-funded. Terrorists rely on sponsors. Hence gangsters will be harder to stop, because stealing and selling is profitable, but blowing stuff up is not.

For all the talk of radical ideology, there aren't all that many men actually willing to die for their alleged cause, and even fewer have the discipline to do something dangerous. The best thing that our government did was destroy the Afghan camps that trained and disciplined the few willing fighters out there.

[Nick M.]

Dan T. | June 29, 2007, 2:49pm | #

I will add this - rather than restricting liberty, I think a better plan is to stop doing things as a country that piss so many people off.

Dan T. are you saying that we invited the terrorists to attack us? I've heard a lot of theories on 9/11, but that is one that I've never heard, and I would ask you to apoligize for that statement.

[Dan T.]

Dan T. are you saying that we invited the terrorists to attack us? I've heard a lot of theories on 9/11, but that is one that I've never heard, and I would ask you to apoligize for that statement.

I tend to look at 9/11 as being a kind of reaction to our foreign policy. This is not to say that we "deserved" it or invited it or what have you, only that something we're doing is creating a lot of enemies.

[Mr. Steven Crane]

[Daniel]

This is eerily close to the Giuliani Gambit during one of those nonsense GOP debates when attacking Paul for just mentioning a view of 9/11 he didn't care for.

For the record, I don't see why Dan T. needs to apologize for suggesting a foreign policy based on the US not being a self-righteous prick on the world stage might be a good idea.

Daniel

[carrick]

This is kind of insulting - of course I'm able to "comprehend" that.

The views of the judge depress me, so I was being a bit snippy. I didn't not intend to attack you personally, so I apologize.

But I'm concerned with more than just my personal demise. NYC being nuked would affect us all greatly even if we don't live there.

The police state tactics that will be required to prevent this from occuring will also affect us greatly even if we don't live there.

If fear the loss of freedom more than I fear the consequences of the next terrorist attack on the US.

[carrick]

Dan T. are you saying that we invited the terrorists to attack us?

Al Qaeda attacked the US because we have troops stationed in Saudi Arabia which they view as sacreligious.

We have troops stationed in SA because Saddam invaded Kuwait.

He invaded Kuwait after the Bush I adminstration essentially told him we don't get involved in border disputes (or course we didn't predict his response to that message).

We tolerated Saddam because he was leverage against Iran which is an enemy of ours.

Iran is an enemy of ours because we supported the tyranical monarch that previously ruled Iran.

We supportted the tryranical monarch that ruled Iran because Iran is a great place to launch nuclear weapons at the USSR.

And so on.

How far back in time do you want to go to figure out why 19 SOBs decided to attack the US?

[MikeP]

are you saying that we invited the terrorists to attack us? I've heard a lot of theories on 9/11, but that is one that I've never heard, and I would ask you to apoligize for that statement.

?

It is beyond question that the terrorists attacked the US because of the US's futzing around in the Middle East. It is debatable whether the US should be there and what form that presence should take, but to feign that you have never heard of that explanation is really odd.

Have you been asleep for the last 30 years?

[Randolph Carter]

This is eerily close to the Giuliani Gambit during one of those nonsense GOP debates when attacking Paul for just mentioning a view of 9/11 he didn't care for.

Indeed, it is eerily similar. in fact, the wording is exactly the same, leading me to believe it was a meme-based joke. Maybe not funny, but a joke nonetheless.

[Nick M.]

Yes, sorry I forgot the /sarc or /giuliani tag.

[anonymoose]

Those interested in a way to defeat terrorism without surrendering our way of life may be interested in reading "Unconquerable Nation Knowing Our Enemy, Strengthening Ourselves" by Brian Michael Jenkins, available online at: http://www.rand.org/pubs/monographs/MG454/

The frontspiece has a picture of the Statue of Liberty with the following quote from the book: "Instead of surrendering our liberties in the name of security, we must embrace liberty as the source and sustenance of our security." I like that so much it hangs above my desk.

[Ardith]

And Daniel is the winner! Tune in next week for another episode of Missing The Point, same channel, same time.

[Pro Libertate]

I don't think there's anything wrong with thinking that we are messing around in the Middle East for little tangible purpose. Or that, by doing so, we ended up becoming the terrorist target that we would not have been but for our meddling.

All that said, nothing we've done earned the attacks, and we didn't deserve to have a couple thousand innocent people murdered over anything we've done. We're mostly the good guys in this. Still, I'd rather we never got as involved in Middle Eastern affairs as we have, and coming to our senses today isn't "running away" or "giving up". It's "coming to our senses".

[carrick]

There are consequences to being involved in the Middle East. There will be consequence for not being involved in Middle East. I don't have the ability to figure out which is better. Nor do I trust anyone that says they do.

[TrickyVic]

"""That's an awfully simplistic viewpoint. Freedom and security are, to begin with, very difficult to define in practice."""

Yes, It's intended to be a simplistic. My example is not intended to be a yard stick for scenarios. I use it as guide for how free or not one's society is. I don't view it as relitive to life or death, since you can live in either absolutes, or not. The freedom to own guns can defend you, and it can kill you as well. There are good and bad elements to freedom just as there are good and bad elements to security. The freedom to own a gun would move the indicator more towards the freedom side despite the fact that people can abuse that freedom.

I can say with certainty that some people in this country believe freedom must be curbed because it can be abused. Those people want to move us more towards the security end of the stick.

[Pro Libertate]

carrick ,

Fair enough--no telling what would happen now if we withdrew. It might come across as a sign of weakness, encouraging further attacks. Under the Libertate Doctrine, that would earn retaliation until such attacks ceased. Otherwise, we stick to our non-meddling course.

Being a global power isn't easy, and whether we exert ourselves militarily or not, we still have interests pretty much everywhere.

[Joshua Holmes]

powerforward,

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.

Oh, YesTheyWill.

[carrick]

Otherwise, we stick to our non-meddling course.

You also need to caculate the probability and impact of 1/4 to 1/3 of the world's oils fields going up in flames during a regional conflict.

[Pro Libertate]

Let's face it--the Middle East is more dependent on their oil than we are. They lack any other serious source of revenue. I think that keeps things from blowing up there more than anything else. Besides, our departure doesn't mean nonintervention. Let Europe enjoy. They started the meddling, anyway.

[carrick]

Let Europe enjoy.

I can get behind that one 😉

[Pro Libertate]

It's the popular selling point of the doctrine, truly.

[Fluffy]

"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.

[lunchstealer]

I agree with Senor Crane.

[Sioux Chief]

If brutality was the way to go, the US shouldn't even exist.

Uhhhhhhhhhhhh.....

[crimethink]

Putting aside the sarcasm of my above post, I would note that unrestrained brutality worked just fine for Saddam for 25 years. The problem is, there's a limit to our brutality. We're not going to kill all the men, women, and children in a village if rebels are in their midst; we're not going to severely torture anyone who looks at us cross-eyed (I'm refering to techniques more intense than waterboarding and the like). If we really wanted to create stability in Iraq at any cost, we could turn the entire country into an ultra-stable glass slab with a small fraction of our nuclear arsenal.

But, we don't want to do those things (nor should we). The limited brutality we exercise has the same effect as taking only half of an antibiotic prescription: we knock off a few innocent people and incompetent enemies, while leaving the more formidable threats intact, with the full support of the enraged community around them.

[Lamar]

Judge Posner is liberal-leaning? Huh, wha??? Nobody thinks that. And his experise is in his supposed economic analysis of everything from insurance claims to donkey buggery. I don't think anybody respects him on national security or criminal law issues, at least not like the article implies. He's a brand name, the big mac of judges. All sizzle, no substance (except on economic torts). If the guy had substance, he'd be on the court.

[Fluffy]

Crimethink, I think your answer is part of the problem.

The question has never been whether we could produce stability in Iraq with the application of sufficient brutality. The question is whether we can produce safety from terrorism if we just applied enough brutality.

I submit that turning Iraq into a glass table with nuclear weapons would not produce safety from terrorism. Unless we're going to nuke every Muslim country in the world, such a policy would produce 100 9/11's.

If we broadened our aim to nuke even more people, then I think we'd simply produce American citizen-terrorists, and British citizen-terrorists, etc.

That's the other problem with the brutality approach. When it doesn't work, the logical reaction is to drop the policy, but that's not the reaction lizard-brain Republicans actually have. Their reaction is to argue that we haven't been brutal enough yet. The feedback loop on that process doesn't end in a good place.

[James Anderson Merritt]

Fluffy said, "That's the other problem with the brutality approach. When it doesn't work, the logical reaction is to drop the policy, but that's not the reaction lizard-brain Republicans actually have. Their reaction is to argue that we haven't been brutal enough yet. The feedback loop on that process doesn't end in a good place."

I agree, but also observe that you get a true statement if you make the following word substitutions in the above text:

brutality = regulatory
republicans = politicians
brutal = regulated

Of course, both brutality and regulation involve force at their cores, so the fact that this particular substitution maneuver works should surprise nobody.

[James Anderson Merritt]

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.

[James Anderson Merritt]

AndyJ said, "We have failed to stop the Mafia with these methods. They slowed only by becoming successful. The same with the Chinese and Russian gangs..."

Well, we took a lot of wind out of their sails when we ended Prohibition. Then we turned right around and gave them a new Prohibition to play with, with predictable results. I bet ending Prohibition II would work at least as well as ending Prohibition I did.