Thursday, January 8, 2009

civil liberties and fighting terror

Here is this by Eric Posner, son of the renowned Richard Posner, father and son both teaching at a great institution--the University of Chicago Law School, the former full time the latter part time as he sits on the Federal Court of Appeal:
which occaisoned the following exchanges, bad spelling, typos, bad grammar et al:

Against the grain

I imagine this comment by Eric Posner defies the conventional wisdom that gathers about these environs, but I fail to understand any respect in which he is substantially mistaken. I would welcome being enlightened as to that.

Itzik Basman

— posted 12/17/2008 at 18:25 by Itzik Basman

Substantially mistaken? No sir. That would be too kind. Posner, in fact, is dead wrong. Dangerously wrong.Posner's argument is based on technological materialism of the most odious sort. He believes that the mere existence of technology determines the degree of insecurity individuals and nations face. Though he hedges, pointing out that the technology al Qaeda used to perpetrate its crime is decades old, he does not argue as though that were the case, vis: "But, to an extent that is rarely appreciated, this legal regime is contingent on a balance of offensive and defensive technologies. 9/11 made clear that the balance has shifted." If it has shifted, it shifted with the advent of large airplanes and skyscrapers. Hardly a contemporary invention.But even if he were actually arguing about modern weapons Posner would be gravely mistaken in his logic. It is not the capacity to do harm alone that imperils. There are motives at work. This focus on material capacity combined with ignorance of motives is known in foreign policy literature as realism, yet its most prominent feature is probably its disconnect from reality. Motives are deeply important. Again, 9/11 was perpetrated with decades-old technology, and it is 9/11 toward which our response (rounding up Muslims, treating foreigners as criminals, i.e., photographing and fingerprinting them at customs) has been geared. What killed Americans was not new threats, but old technology combined with an ill motive.And whence this motive? Believe it or not, the United States has done much to instill grievance in the Arab world. It is comforting to think that we were attacked by technology, but, in fact, we were attacked by people, people who don't like that the US has supported repressive regimes in their countries for decades (they'd prefer a different repressive regime), who don't like that we have bases in their countries (how would you feel if there were a Saudi base in the United States), who don't like that we give Israel a free pass. If you need any further evidence of American disregard for the lives of Muslims, just look at the tens of thousands of innocents we've killed in Afghanistan and Iraq since 9/11.Posner is wrong that the level of threat we face is out of our control. American behavior inculcates grievance. We are seemingly too arrogant to recognize that by moderating our actions we would make ourselves safer.Another glaring flaw in Posner's argument is his assertion that we do not live in "a society in which the police can provide adequate protection from criminal threats." The FBI, a civilian law enforcement organization, warned the Bush administration on August 6, 2001 that Bin Laden was "determined to strike in US." In July 2001, an FBI agent warned that a large number of muslim extremists were attending US aviation schools, possibly with the intent to hijack aircraft. He spoke to numerous students with al Qaeda connections, but the FBI didn't act on his warnings. US intelligence has been tracking Khaled Shaikh Mohammed since the mid-90s. In fact, there was a tremendous amount of intelligence information pointing to attacks by al Qaeda, and much of the intelligence discussed the specific attackers involved, their intended weapon, and their targets: the idea that the U.S. faced a threat it could not possibly combat without preventive detention measures or through non-civilian methods is patently false. U.S. intelligence and law enforcement agencies had a terrific volume of information about al Qaeda's plans. Does this mean they could have stopped the attacks? Maybe. Maybe not. But capturing random Muslims and incarcerating them in brutal conditions without trial is unlikely to produce the kind of information that would improve security. Consider that Egypt provided several accurate warnings of 9/11 (see the link above). Do you think that after all we've done in the last 7+ years they'd still be so cooperative?Finally, Posner's claim that general preventive detention is consistent with rule-of-law values is utterly baffling. That a professor of law could make such a claim is bordering on tragic. Preventive detention is an abhorrent infringement on liberty. To arrest and hold based on the suspicion of future criminal activity is to criminalize thought and expression (why else would one be targeted?) and assume that law enforcement can predict the future, which we all know is false.Rule of law is supposed to protect us not only from criminal elements in society, but from a government that would deny us liberty in order to ensure physical security for a few docile souls. Posner doesn't tell us what would would count as suspicious, but we've seen it in the past: association with communists, pacifists, anarchists, and civil rights organizations. So-called undesirables. Well, I don't care what my government desires. Free thought and expression are human rights and total security is an unattainable fantasy. Posner and his discipline-obsessed ilk would have us all literally in chains by the time they are satisfied.

— posted 12/18/2008 at 06:05 by a reader


To A Reader::Let me disagree with you.

Posner’s argument is not based on technical materialism. The United States is not reacting to the offensive capacities of its friends and allies. It does not—as far I know—have contingency plans for a Canadian attack having its CentCom in Moose Jaw or picturesque Victoria. It is worried—as it was not so worried before 9/11—about what Islamic Jihad and like crazies may do with increasingly portable, increasingly more accessible wmds such as dirty bombs, chemical and biological weapons.

You distort his argument by ascribing to him worry about weapons as opposed to who is likely to use them. Posner distinguishes between contemporaneous reactions to 9/11 and how it will be likely to be seen in the future. The former focused on what was revealed about the methods and means of radical Islam; the latter will focus on the offensive capability of modern technology. While he notes that 9/11 involved decades old technology, terrorist interest in all developments in offensive technology to better suit its purposes became evident.

You are wrong not to worry as Posner does, as I do, as Obama does, as Cole does, as virtually anyone thoughtful does about the asymmetrical damage that can be done—like taking out chunks of New York City with a dirty bomb, or spreading pandemics by way of anthrax of or other biological means of choice. Rest assured the will exists; the way is upon up. Heaven help us when they consummate.

He is correct about the dangers developing weaponry poses in the wrong hands and does need your granting to him of that supposition for the sake of argument. Your pervasive problem is to keep asserting wrongly that his argument is what in fact it is not: “It is not the existence of the capacity to do harm alone that imperils.” I repeat that that is not his argument. It is clear that he is speaking about havoc creating weaponry in the hands of those who do us ill. 9/11 raised our consciousness of the near to at hand possibilities of mass destruction, increasing with every technological development terrorists can get their hands on. And the reality of asymmetrical warfare was brought home to us by it. So you are flat wrong in your assertion of a grave error in Posner’s logic for the reasons you try to argue for.

It also strikes me that you do no know what realism is. See for example: Realism on this cited account and without doing justice to the breadth of the analysis there places interest as the cornerstone of foreign policy based on the premise that political entities act in their own interest. It does not, on any version with which I am familiar, detach material capacity from motive, and assert what you call technological materialism. At its most degenerate, realism is a policy of the crassest, most humanly indifferent utilitarianism, relatively detached from moral consideration so long as, say, American interests are benefited. But even this overly calculus prone, morally indifferent foreign policy approach has nothing to do with your wacky motion of technological materialism detached from motive.

Rather than argue with you about the extent to which America’s “chickens came home to roost”, I’ll rather just clarify that your point about (possibly justifiable) grievance and motive is quite impertinent to the issue at hand. For America must protect and secure itself regardless how righteous are the motives and grievances of the terrorists who will kill women and children and civilians indiscriminately. And the means—legal and political— of that security and protection, understanding what lies in wait, will finding a way, are what is pertinent. That of course is not to say America should not have x or y foreign policy; it is to say those are not, cannot be, questions which exclude each other—another either/or error you make.Posner, again, never said American security “is entirely out of control”.

He did say that 9/11 woke America up to the looming dangers of massive damage to itself from asymmetrical attack and that in that regard offensive weaponry was outpacing defensive means. Your argument is fallacious: the defensive offensive imbalance matters not once America salves and soothes those who harbour resentment. Your excluded middle, which is the brunt of Posner’s argument, is protection and security in the meantime.

You mischaracterize Posner’s statement that “The standard package of civil liberties in the United States—including the right to a trial and other elements of criminal procedure and protections against surveillance and searches—makes sense in a society in which the police can provide adequate protection from criminal threats.” He is not saying America is such a society. Thus he is not asserting here what you ascribe to him. Rather, he is distinguishing, as is Cole though not enough for Posner’s or my purposes, between a military and a criminal paradigm and the shady grays in between. His argument is that a quasi war time model of detection, surveillance and apprehension is what is required in the trade off between civil liberties and the means of achieving national security.

Your instances of what the FBI (or CIA) or other intelligence agencies warned or did not warn about are beside the point. For it is patently clear that a criminal law model is inadequate to the task.The point is when you can reasonably foresee small organized cells of terrorists bent on doing their worst and armed, ready, willing and able and when you can reasonably foresee the damage they can do—massive damage, with massive loss of life and civilian infrastructure that can bring a great nation to its knees, when what is reasonably foreseeable imperils security, what is a nation to do.

Preventative detention offends your sensibilities. But as noted, even for a “left winger” such as Cole who writes for the Nation and New York Review Of Books (and of course there is nothing wrong with any of that), preventative detention is in order for the war against al Qaeda as authorized by the 2002 Authorization for Use of Military Force.So Cole, in a more limited way than Posner, wants to transcend the criminal law model in dealing with at least with some terrorists. And that does some argumentative violence to your wishing to cling to the efficacy of criminal law in dealing with them.

The issue between Cole and Posner is one of degree and one of whether there needs to be congressional approval for every use of preventative detention, as one bow in the defensive quiver, and just to take one example, or whether there can be a general policy of preventative detention when shadowy groups, organizations and even individuals reasonably engage suspicion in relation to wmds but have not acted so as to be criminally liable? We have never in human history faced the possibility of massdestruction as asymmetrically delivered.

You have not understood the rule of law issue as it arises between Cole and Posner. Posner’s argument is a good one. One ideal of the rule of law is rules of general application. That contrasts with laws, as Posner says, aimed retroactively at individuals or groups. But that is the consequence of Cole’s position. For Cole Congress will have to respond on a case by case basis to apprehended threats, which the executive will learn about first usually, and in effect declare war on any of them before prevention detention can be effectuated. Posner argues that in time the case by case build up of war authorizations will build up into a scheme of general applicability. As Posner says, from a rule of law perspective, “A general preventive detention law puts everyone on notice that certain activities will raise suspicions of criminal or military dangerousness, and would thus be more consistent with the rule-of-law values that Cole seeks to uphold.”

In this regard, I cannot begin to fathom your comment, given the stakes, about ensuring “physical security for a few docile souls.” It seems naïve, reckless and ill considered in the extreme.

Itzik Basman

— posted 12/18/2008 at 13:40 by Itzik Basman


2 corrections

1. "He is correct about the dangers developing weaponry poses in the wrong hands and does need your granting to him of that supposition for the sake of argument."should read:"and does not need"

2. "He is not saying America is such a society." should read:"is not such a society."I'm sure there are many others but i have not found an edit function here.

— posted 12/18/2008 at 14:05 by itzik basman

First of all realism absolutely disregards motive. The classic methaphor is that of billiard balls: actors have material capacity (the speed and spin) and what's inside does not matter. They simply act upon each other. All we need consider is their power—their ability to effect outcomes. The only interest is power. That is what interest means in the context of realist foreign policy, and power is material capability. A realist foreign policy considers the balance of power among nations and thereby responds. Posner—nor anyone else—cares about Canadian power because Canada is of no threat. And Posner is most definitely a realist. He explicitly states that what we learn from 9/11 and the way we react to it is not about radical Islam. It is about enemies, any enemies, and their weapons. He is talking about technology and its ability to do us harm. You are entirely mistaken if you think otherwise. Posner said it himself.As to whether the criminal justice system can handle terrorism cases, read Joanne Mariner's response. The criminal justice system has dealt with terrorism before and there is no justifiable reason to believe it can't now. It is very much up to the task, as it has long been.And let's stop pretending that the asymmetry is on the side of the terrorists. The U.S. has killed far more "enemies" in response to 9/11 than terrorists did that day. And the contention that they can bring a country like the U.S. to its knees is unwarranted hyperbole. You have a greater chance of dying in your bathtub than in a terrorist attack ( It is simply unrealistic to say that the U.S. faces an existential threat from terrorists.And while general application might be an element of the rule of law, criminalizing thought and expression are not elements of any such reasonable rule. I am not mischaracterizing or misunderstanding Posner's argument. I am explaining why his perspective is utterly warped (Cole's leaves much to be desired as well, but I'm not discussing his): he has sacrificed the essence of law for its general application. Laws exist to protect us from those who would infringe on our reasonable right to liberty, they do not exist to infringe that liberty. That is an ideal statement, of course, as many laws do infringe unreasonable on liberty. We don't need yet another though.
— posted 12/18/2008 at 18:54 by a reader
One addendum: The reason Canada is of no threat is because it has no power, not because it has no ill motive. As far as can be ascertained, neither China nor Russia has ill motives toward the U.S. right now, but we are prepared to fight them and they are prepared us despite the fact that we have no more reason to fight them than they do us. That's because they have power, and so does the U.S.And regardless of whether Posner believes himself to be a realist (the point, I admit, is somewhat moot since we're not talking about state actors, but terrorists), we can still assuage the grievances of enemies, and, no, it does not take a very long time. It takes less arrogance, the dismantling of bases, and a more reasonable position on Israel. Setting the foreign policy agenda is largely an executive function. If Barack Obama wants the U.S. to have a new policy in the Middle East, he could do it without congressional intercession. He could do it loudly so that radical Islamists know it. And it's a good idea too. We gain nothing from our imperious behavior there.
— posted 12/18/2008 at 19:07 by a reader


rule of law and so on

To a reader:

Let me continue to disagree with you and say why. As I have noted, ad nauseum, you put insupportable constructions on what Posner says, call your constructions his argument, and go from there, all on misconceived premises. So in a word you are mischaracterizing, misunderstanding and warping Posner’s argument. You are free to disagree with him but only fairly.

So consider your wild and overheated comment, “And while general application might be an element of the rule of law, criminalizing thought and expression are not elements of any such reasonable rule.” Look at what you are saying even before we get to Posner. Obviously Anglo-American-Canadian law does not criminalize thought. In fact, until we get to reading minds, criminalizing thought as detached from expression—you say “thought and expression”—is a metaphysical impossibility. But our law does criminalize some expression and make some expression tortious. First Amendment rights are not absolute—Hugo Black to the contrary notwithstanding; one cannot: incite to violence, violate hate laws, discuss committing a crime or tortious act—that being criminal and civil conspiracy, defame, and so on with endless examples.

So, before we get to Posner, who is a careful thinker even if you disagree with him, your assertion is misconceived. What the law typically does, especially in the area of Consitutional adjudication, is to balance the competing claims of rights and freedoms and the values underlying them. (And isn't that in fact writ small what Isaiah Berlin talked about writ large for liberal societies?) So, in fact, criminalizing (and making civilly actionable)certain modes of expression by laws of general application can be absolutely consistent with the ideals of the rule of law.

And where does Posner, getting to him, champion in his argument criminalizing expression such that he robs the law of its "essence"? I am sorry to say it again, but you evidence ongoing failure to understand him or to know what you are talking about. Posner is talking about the balancing I just mentioned. He is pitting the asymmetric dangers posed (principally) by terrorists (who may or may not be state actors, state supported or simply state sanctioned—there is no limit to the possible configurations) to American security-the cardinal concern of government—keeping America safe and secure—against constitutionally protected rights and freedoms. Consistent with his father’s aphorism—"the Constitution is not a suicide pact"—and consistent with the history and reality of incursions on these rights and freedoms to serve greater and more important values and interests analogous to not getting dirty bombed to massive death or preventing a pandemic, Posner seeks to strike a measured balance as between the competing claims of national security which portend encroaching on liberties and the rights and freedoms of which we speak. So, of course, reasonable people can disagree on how to achieve that balance, but it is unreasonable to say, as you declaim, “he has sacrificed the essence of law for its general application.” That is, as I have argued, misconceived and I am afraid you do not know what the “essence of the law” is.

You similarly botch the notion of asymmetry. Your argument in your responding post is that asymmetry is on the side of the U.S. because it has killed more enemies in response to 9/11 than Americans were killed on 9/11. How does that make any sense? There is no question of America’s military superiority; that’s what asymmetry means here: significantly disproportionately smaller forces with significantly disproportionately compact means damaging larger and mightier enemies and causing massively disproportionate damage considering their significantly smaller numbers and means. In this kind of asymmetrical contest, concealable, accessible, portable weapons that can cause enormous, unthinkably enormous, damage by an enemy that Mao-like can float undetected in a free and open society become like the Colt 45, the "old equalizer" and the "widow maker".

You further seem not to understand the dynamics of a terrorist attack. It has little to do with the statistical improbability of an attack save to capitalize on the sheer fear of randomness. A terrorist attack is meant to terrorize, to cripple and paralyze social functioning by spreading terror. 9/11, and Oklahoma as well, showed the possibilities for that, using conventional technologies in unorthodox ways against unanticipated and symbolically and pratically important targets. The targets are still there; the will is still there; America is still a free and open, and even porous, society; and the means of massive lethality are ever improving. What is it about that that is so difficult to comprehend?

I am not going to debate the meaning of realism with you, and your strange explication of it, because it is a side bar. And I am not going to debate with you the proposition that a criminal law model is sufficient for America to deal with threats from terrorists in all their possible state related or unstate related configurations, because your assertion of it is so detached from reality that it is a waste of time to rehearse the obvious. I am much more interested in arguments that go to the extent of departure from a criminal law model as in the specific disagreement between Cole and Posner, and the more general issues raised thereby, in which both law profs presuppose the necessity for that departure, than to try in effect to reinvent the wheel with you.

If you wanted to go public with who you are, a reader, that would be interesting, but that's entirely up to you.

Itzik Basman

— posted 12/19/2008 at 10:46 by Itzik Bsman

This approach, though well-grounded in history, is in tension with rule-of-law ideals, which promote generally applicable laws rather than laws retroactively aimed at particular individuals or groups.This is deeply illogical. By this reasoning, rather than issue a warrant for the arrest of a single criminal, we issue warrants for the arrest of everyone. This sentence is an argument for universal preventative detention, which is of course absurd.There's a point a reader made that Itzik Basman didn't get. Posner argues that as assymmetric threats grow more dangerous, we have to readjust the balance between civil liberties and security measures. However, if other measures can be taken that increase our security without losing civil liberties, that decreases the need for such a trade off. Our danger is proportional to the number of people and organizations who wish us harm, their capacity to acquire dangerous weapons, and their ability to deploy them while evading our detection. American policy today seems determined to inflame as many people as possible to hate our guts, and we've been somewhat lax in our efforts to secure loose nukes. Given that there's so much progress to be made on the first two factors, it's not clear why we would need some dramatic shift on the third.Especially when a lack of government transparency is itself a threat to our security. The decision to invade Iraq killed more Americans than 9/11.
— posted 12/27/2008 at 12:33 by Consumatopia


More either or Consumptia - "powers obtained through eating of certain body parts"-cool handle, I guess, and if your tastes run to that kind of dining experience.

Your take on the rule of law point interests me. I don't think you have Posner's argument correct. A difference between Posner and Cole on preventative detention, which they both favor, is that Cole requires in effect Congress to declare war against whomever ought to be preventatively detained. Posner finds this awkward and worries about the ability to investigate, apprehend, interdict, any number of shadowy groups, individuals, who by their activities arouse reasonable suspicion, but have committed no crime. What's to be done with them, understanding that the potential for asymmetric damage in astonishing?

As Posner says, "Cole's preference for a preventive detention scheme that lurches into operation only after Congress declares war on a particular group rests on worries about executive overreaching." Why Cole's approach violates rule of law values is that it operates retroactively, as opposed to a rule of general application. Where you miss the point, I suggest,is by trying to take Posner's argument to what you misconceive as its absurd conclusion. The precise point is that Posner is positing an post criminal paradigm array of techniques for dealing with terrorists, not for dealing with conventional criminals, handled on balance satisfactorily by the criminal law paradigm. You fail to grasp that distinction and therefore take Posner to an absurd place where his own argument does not compel him to go.

Though I have a hunch, I'm not clear on what point I'm not getting. What you say here is correct: "Posner argues that as assymmetric (sic) threats grow more dangerous, we have to readjust the balance between civil liberties and security measures. However, if other measures can be taken that increase our security without losing civil liberties, that decreases the need for such a trade off.Our danger is proportional to the number of people and organizations who wish us harm, their capacity to acquire dangerous weapons, and their ability to deploy them while evading our detection."

The case for whether "other measures" can increase security without restricting civil liberties needs to be made. If it can be made, no reasonable person can want needlessly to encroach on rights and liberties. But I myself agree with Posner when he says, "I suspect that in the next years, even under a more liberal administration, Bush-era restrictions on civil liberties will be retained, at least to some extent. And they will be extended if new attacks occur. It is only a matter of time before a general preventive detention system, not limited to members of al Qaeda and associated groups, will be added..."

My hunch is that the point you think I am missing is that America needs to transform its foreign policy to assuage the grievances of those who hate it. Is that be your "other measures"? But you are, I'd argue, making the same either/or mistake I claimed "a reader" made. By all means let America have the foreign policy best geared to redound to it with all the world’s love and affection that is consistent with its interests. I get that, I think. But why does that exclude the need to deal appropriately now with the terrorists who mean to do it as much harm as possible? As I said to "a reader" the issues are not and cannot be mutually exclusive.

The other fact is, off the principled argument, that Obama who carries a nation's yearning for hope and change and betterment, has appointed Hillary Clinton his Secretary of State, is keeping Gates as his Secretary of Defense, isn’t leaving Iraq so soon, and is speaking of ramping up troops levels in Afghanistan.

Itzik Basman

— posted 12/27/2008 at 22:09 by Itzik Basman

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