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June 16, 2006

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Kimball Corson

Geof writes, " . . .The question isn’t whether freedom has costs, but whether freedom is worth those costs. Otherwise, all freedom goes out the window. More important, the costs of freedom can’t rationally be measured in terms of the increased risk of attacks. . ."

The problem with pricing freedom, whether the threat to it is internal and reactive, internal and opportunistic or external and immediate is, at every juncture and at the margin, what do we give up and what do we concretely gain in the instance by the proposed compromise to our liberties. But on top of this too we need to watch the trend of costs and the headway against our problems. Later, things are often not as they seem at the times decisions are made. Looking back, costs and gains can add up in a way that discourage and dismay, in part because of the subjectivity of the analysis grounded in problems of valuation or assessment, in part because we might be asked to give up a great deal to get relatively little (diaagree with the assessment) and, in part too because governments typically underestimate the costs and overestimate the gains when decisions are made. Creeping incrementalism regarding our losses may make the total cost too great even though we approved of the incremental steps along the way.

The weight of this aggregate argument suggests to me we should be loath give up much in the way of our civil liberties unless there is a strong and very worth gain clearly demonstrated, if not indeed a victory at hand. However, secrecy, properly or not, makes this assessment by those asked to sustain the losses very difficult. The situation becomes therefore very problematical, almost a Catch 22. We can find ourselves on a slippery slope with dismal prospects and dismay at where we ultimately find ourselves. Then, too, how, if at all, do we get back what we had? It is too easy to make mistakes and we seem to make many. If we are truly loath to give up much, I believe we will come out ahead in the longer run under this analysis of errors.

Kimball Corson

To take Dick Posner’s side of it, for the sake of argument, perhaps we need to develop a new and reversed idea of a "suspect class" so that only the rights of that class are temporarily compromised if that is deemed necessary. Profiling is a start as a first order approximation in the absence of more complete information, until better information is acquired or the threat is past. So too is a clamp down on "treasonous" speech targeted to incite terrorist attack by "the enemy", e.g., “radical imams” preaching “the glories of suicide attacks” against infidels (code word for Americans). Shut them down and deport them. Such speech is tantamount in these circumstances to shouting fire in a crowded theater. To proceed so is sensible "risk management" during war that puts the cost close to where it should lie. To be sure there will be problems at the edges, but we can live with that. The problem arises when we cannot effectively profile and everyone is screened or scrutinized instead, but I believe that, by prior profiling and classification, much general screening now used can be avoided and the rights of most preserved in tact. However, we have been too reluctant to go down this road. Perhaps we should reexamine that reluctance before the rights of most of us are too compromised and unnecessarily so, when “suspect classes can” be targeted from the outset.

Bob

Your premise that there is a "trade-off between liberty and security" is false. Liberty and security are not mutually exclusive. This is, however, the current belief of many, therefore, it can be made to seem like the truth. It is the lazy way to think about the issue.

Kimball Corson

But Bob, there truly are some current issues which posit that tradeoff in the so-called war on terror, although more generally and as you suggest there is no necessary tradeoff in many other situations.

DS

Geof writes: "If “radical imams” are allowed to preach “the glories of suicide attacks,” or if the National Security Agency is prohibited from reading email without probable cause and a warrant, the risk that the U.S. will be subjected to another 9/11-type attack may, indeed, be greater than would otherwise be the case. That’s why we talk about a trade-off between liberty and security."

But is this really true? Doesn't allowing the Imam to preach such things also reveal to us the people supporting them? I think, for instance, of the recent plots by high schools to shoot out their schools that were foiled because they talked about their intentions with each other on MySpace. If their freedom to post such things was limited, would this incident have been stopped? Putting limits on public speech just moves it underground where it can't be responded to.

Likewise, what evidence is there that requiring probable cause for NSA snooping actually increases risk? It's been pointed out that having too much information to sift through is as big a problem as having too little. So having some way to limit the data you seek is essential to intelligence gathering anyway. Why isn't probable cause a good standard for focusing in on what's relevant?

James

I would imagine that the proponent of NSA snooping w/out a warrant would argue that limiting information through some sort of judicial metric like probable cause is unnecessary because the NSA knows what they are doing. Essentially, they can limit their information pool effectively and hone in on the most important threats without the oversight or involvement of a third party judge. Forcing the agency to obtain approval elsewhere before proceeding on a particular surveillance or wire tap would provide no benefit to the agency's ability to effectively gather intelligence. Judicial oversight is a safeguard not a support.

Additionally, NSA proponents have a strong argument that time is so central to the agency's ability to be effective that the delays incurred by obtaining a "warrant" or some similar authorization are prohibitively high. Even with the much expedited FISA courts, things still might be excessively hindered and the desired information may become useless.

If we are concerned about the NSA and the executive's ability to use information gathered without judicial authorization for their own purposes, we can prevent this at the prosecutorial end. If the executive sought to prosecute a citizen for breaking the law by using information obtained by the NSA, whether the NSA followed acceptable procedures in gathering it could be evaluated then, after the fact. If it was determined the NSA was overzealous and violated acceptable norms, the information could be held inadmissible, making it essentially useless in the criminal/judicial sense. This way threats can be averted effectively while civil liberties are generally protected.

I suppose we do give up something in that some NSA agent in their building's basement gets to listen to my phone calls. He is able to learn all sorts of information about me as an individual such as how often I call my sister or whether I disapprove of my friend purchasing an ostentatious automobile. Yet him eavesdropping on my phone call home to see if I should pick up 2% or nonfat milk seems a pretty reasonable price to pay.

law_student

I generally agree, but I think you have missed a vital component of the analysis.

I think the substance of the debate focuses on how much security we're actually gaining and how much liberty we're actually losing, not the appropriate liberty/security tradeoff. I tend to be of the opinion that we're giving up a lot of liberty and gaining little or nothing in security. My guess is that Posner takes the opposite view, and that's where the real disagreement is.

Gil Maduro

The whole debate is highly annoying to me for a couple of simple yet irrefutable reasons.
Before this issue is to be considered remotely legitimate we must do everything humanly possible to prevent future attacks. Most prominently: SECURE OUR PORTS AND BORDERS! This, unfortunately, has not figured into the security calculus of our leaders and policy apologists. Second, it seems like the reasoning of the apologist’s boils down to: WE MUST KILL THE PATIENT TO SAVE HIM i.e. our civil liberties. If there were ever a more perverse prescription I’m at a loss to articulate it. How on earth do you save liberty by preventing it? It’s idiocy! It’s bad reasoning plain and simple.
One more thing I find offensive. Those who would approve of profiling as a tool I’d remind them that we live in a heterogeneous society. There are many Americans that would easily fit the description of, say, a middle-eastern man. In my neighborhood in New York that profile would fit a very large segment. Yet, why should we be willing to impose the cost of “security” on these people?

Bob

It would seem to me that the primary role of policing is to capture the criminals, not to prevent criminal actions. Although there is some merit to prevention, it is largely inneffective. If one really wants to commit a crime, there is really no way to stop them, unless of course, they tell others of their intent. Most successes in crime prevention were due to this very thing; criminals not being able to keep a secret. But telling others does not violate their right to privacy. Now, for the rest of the would-be criminals that are smart enough to remain quiet about their intentions, we would need thought police. My point is...that prevention of crime requires loss of privacy for all, and it's just not worth it. And yes, this includes terrorist acts which I consider a crime, not an act of war, as it was perpetrated not by another country, but by a madman. The government cannot make us safe from smart criminals that can keep secrets, and surrenduring our rights to government in order to feel safe is sad. If we do so, we deserve to lose our republic.

David

Gil-

Re your last point: It seems to me that singling out for search those who appear to meet the profile of persons who in the recent past have engaged in terrorist attacks on airplanes--that is young males with a Middle Eastern appearance--results in less loss of liberty than subjecting everyone attempting to board the airplane to that same level of scrutiny. To search one out of, say, every fifty passengers surely infringes liberty less on balance than searching all passengers. If you're uncomfortable with that, then search all young males and let the moms with school age children, the grandmothers, the middle-aged couples, etc. go.

Good discussion.

Gil Maduro

Thanks David.

My frustration with the freedom vs. security debate, aside from the clear lapses in logic of some commentators, is that we may have brought up this predicament on ourselves. It is obvious that the events of 9/11 were not random or cooked-up on a whim. Instead the event is a clear reaction to our policies in the Middle East. This is in no way intended to mean that the acts were justified, which I deeply believe they were not. But the reality is that they were a reaction to our official and collective actions as a people. How? By not placing sufficient weight on the plight of the Palestinians, by having a voracious appetite for energy, much of it wasteful and inefficient and, the greatest sin of them all; by dwelling in this blissful bubble we call the U.S. of A. shielded from the realities of our world. We are, relatively speaking, a young nation and perhaps our complacency and obliviousness is due to a natural process of cultural/political development. Perhaps we are not “mature” enough as a people to internalize or be interested in these realities. But this does not make them go away. Of course, it is not pleasant to see the painful images that large segments of the planet endure day in and day out on our TV sets, so we give the people (market?) what they want: pleasant images, superficial analysis if any or just plain old fun.

This brings me to my main point which is that we are adding insult to injury by trashing our Constitution when we start chipping away at our civil liberties when 1) the circumstances do not warrant such erosion and 2) our leaders, past and present, placed us on this path. I am willing to give the American public a pass for their ignorance about the issues that conflict humanity. However, I am not willing to do the same for our leaders past and present. The topic of the trade-off between freedom and security is indeed a fascinating one. There is no doubt in my mind that in the margin there must be some equilibrium of both freedom and security that society feels comfortable with ceteris paribus. But to push the “equilibrium” to some artificial corner solution, which is avoidable, in detriment to freedom on the belief of some gain in “security” which cannot possibly be demonstrated is not only offensive but criminal and debases one of humanity’s most noble and venerable documents, OUR Constitution. I’m just not willing to go there without a fight. Would this last sentence legally brand me as a terrorist facilitator? Thankfully no, well, not yet.

David

Gil--

Regardless of what caused 9/11, we now find ourselves as a nation (and, more broadly, as part of a civilized world) confronted with people--more specifically with young Muslim males espousing a radical, violent and deviant version of Islam--who are willing to kill, maim and destroy without compunction or distinction. People who are unconnected (at least on the face of it) with any government, unlike Soviet spies or Nazi saboteurs. The question is how do we respond. In my way of thinking, that means finding and stopping these people before they attack again.

To return to my point (and a similar one in response to Judge Posner's post): it seems to me that it is less unreasonable (and hence more constitutional under the Fifth Amendment) to search all young males attempting to board airplanes and who appear to be Muslims than to search everyone attempting to board an airplane.

Roach

Clearly our foreign policy in the Middle East has something to do with Al Qaeda, its motivations, and the anger of the Muslim world. That said, it does not prove these policies are all bad or that those angered are being reasonable. Gil writes that our chief sin is "dwelling in this blissful bubble we call the U.S. of A." But Osama bin Laden thought our chief sin was dwelling in the Muslim Holy Land, the Arabian Peninsula. Our mere presence, at the invitation of the Saudi government to defend Saudis from Iraqi aggression no less, was the chief impetus to bin Laden's virulent anti-Americanism.

Gil Maduro

Roach

It is important not to forget that the Saudi Government is a repressive monarchy. Does it not seem odd for a democracy to support a monarchy instead of popular support? Add to deep frustration and humiliation over Palestine the widespread economic and educational backwardness and religious fervor and you have the perfect mix for a bomb. Regardless of whether the sentiment are “rational” or not is irrelevant when we are trying to figure out the forces that lead to 9/11. And there is no way to logically avoid this.

David

For the above reason the events of 9/11 are important. Yes, it is the "past" now, but it fixes the context of everything anew. Now, the dangers that we face could easily be devastating. This is a very scary scenario. But why should civil liberties be placed on the line when so much more can be done before we start what amounts to legal cannibalism for the sake of the clan. It just seems barbaric.

I think Bob has it right. No government can deter the determined. But losing the Republic, to who knows what, is very sad and scarier.


Max Renn

James writes:

I suppose we do give up something in that some NSA agent in their building's basement gets to listen to my phone calls. He is able to learn all sorts of information about me as an individual such as how often I call my sister or whether I disapprove of my friend purchasing an ostentatious automobile. Yet him eavesdropping on my phone call home to see if I should pick up 2% or nonfat milk seems a pretty reasonable price to pay.

Sure, it's the 'innocent citizens have nothing to worry about' bit. But what if the trolling reveals that you have a fondness for Hentai and the very conservative agent there doesn't like it, and arranges to have you busted locally via a complicated arrangement of tip offs. Even if you're never found guilty, you lose your spouse, house, job, etc., over your love for unsavory but legal porn. Nice.

David

Gil--

Re "losing the Republic:" Nothing that the current administration has done approaches the steps taken by the Lincoln, Wilson, Roosevelt, etc. administrations in time of war. Yet the Republic survived, strenghtened, and went on. I have enough faith in our Republic to believe that the same will happen this time.

The Fifth Amendment prescribes "unreasonable" searches and seizures. "Unreasonable" is by its very nature determined by the context, and war is one part of the context. That is, the Fifth Amendment is not absolute.

I would like for someone to address my underlying point about searching all versus searching some of those seeking to board an airplane.

David

Although this is a little off point:

Those who think that our foreign policy somehow caused the current jihad should take a look at the world. Jihadis are currently attacking just about everyone who is different from them: Shiites in Iraq and India, liberal Sunnis in Egypt, Lebanon and other countries, to say nothing of Jews, Hindus, Christians and others all over the world.

Please read "Dream Palace of the Arabs" by Fouad Ajami to discover the history of current jihadism. Attacks predate the foundation of the State of Israel and started as attacks against Arab intellectuals who openly disagreed with these madmen's 8th Century interpretation of Islam. Those attacks continue.

I would wager that at least 100 Muslims have been killed by these madmen for every non-Muslim in the last, say 80 years.

Kimball Corson

The deceased General Westmoreland might argue that if we could hold that relative attrition ratio, we should step up the pace of the war so the world will run out of radical Arabs.

Gil Maduro

David

Your empirical justifications for your arguments are very compelling. However, I don’t feel that they place enough value to freedom. It is our proud legacy to have had freedoms restored after very trying periods of crises, where those freedoms were placed in check by the executive. The spirit of the Constitution renewed is very inspiring, and this is to the credit of the American people. But you cannot compare the historical/technological context of mid-nineteenth to mid-twentieth century capacity to power consolidation to what we have today. This is not a trivial point and only when freedom is highly elastic relative to some sense of security, can we run the risk of under-valuing it.

It is not that I don’t trust the American people. We may get something wrong for a while but have always managed to figure it out and make corrections. It is the tenaciousness of government, especially a very large governmental structure that pervades every aspect of life that I do not trust. It is a good thing to have faith in the Republic as you and I do. But there is nothing that prevents any republic from becoming something completely different. All we need is the right chain of events and the capacity to quickly consolidate power. As history goes, this is not a far fetched outcome. You also seem to ignore my main point, that is, there seems to be more that can be done to increase security without having to infringe wholesale on freedom. It’s all about valuing freedom enough to fight for it, question those who threaten it and remain vigilant. That is why we have three co-equal branches of government, because we cannot trust anyone of them singly to do the right thing when such action may erode its hold on power.

Another troubling point you raise is this notion of freedom by the numbers. Your reasoning that if by infringing on the freedoms of a minority we spare the “freedoms” of the majority is an absurd one. Freedom is not some additive quantity. You either have freedom or you don’t. The fact that most may enjoy lack of scrutiny or harassment or whatever does not make them free since all it takes is a change in justification by the state to place them in some suspect category. If we are not breaking the law then freedoms must be to all, this precludes excepting a minority group. So, for example, we are free when all searches in the airport are applied to all passengers and not just those that may fit some troubling profile. Inconvenient? Yes, very. Intrusive? Of course. But no freedom has been infringed upon. You can always not fly. If we single out a group of people for scrutiny we all loose freedom even if we are part of the majority that gets to walk through the check point with not even a glance thrown in our direction. I think that ultimately you are confusing convenience with freedom. But the loss of the former is hardly equivalent to the loss of the later.

David

Gil--

I am very cognizant of the dangers that the government poses to our liberties. Your arguments are those that I make. The government by its very nature will seek to take power to itself, and we must be vigilant in defense of our liberties. That being said, I do not believe that I can add to the discussion by the professors as to your point regarding increases in security not accompanied by losses of our liberties. They address that point in the main posts.

However, our lives are one--perhaps the most fundamental--of our civil rights and at this point in history, I am willing to give latitude to the government seeking to preserve our lives against another attack by using the what seem to me to be fairly limited means that it has chosen. I do not sense any loss of my personal liberty (except while having to be searched at airports) arising out of the WOT. See my post in response to a point made on one of the other comment strings.

In regard to your last paragraph: As you say, getting on a commercial airliner is a privilege. A certain class of persons--young Muslim males--has abused that privilege by hijacking planes and using the planes themselves as bombs to destroy themselves and thousands of others, just as members of that class have put bombs on planes in the past in an attempt to take innocent life. Surely a rational response to those attacks is to look more closely at the members of that class as they attempt to take advantage of the priviledge of boarding a commercial airliner.

Many are outraged over NSA electronic surveillance because of the fear that all of our telephone conversations, E-mails, etc. are being monitored rather than just those of suspected terrorists. Would you prefer the former to the latter? If not, how would you distinguish the two situations? If you think that is an unfair comparison, then exactly what would you have the government do to try to prevent more terrorist attacks?

Kimball Corson

David, I think it is less what the government does than how it is doing it, compromising our rights in secret, without FISA court approval, without any oversight, without restrictions on the use of our data, which now include financial data as well, and without any regulation by Congress. Indeed, many in Congress did not even know. Without oversight or an independent prosecutor and with a COngress stuffed with Republicans, the Executive Branch is allowed to run free and I don't think these guys should be allowed to do that. Their judgment is demonstrably bad, Bush is informed by God and ministers more than lawyers and Cheney has a dispised track record for lining his pockets among other things and being ethically challenged as well as jaded by too many years in govenment when he was not working the "revolving door."

David

Kimball--

Would wholesale surveillance of all our telephone calls, internet traffic and financial records be O.K.if approved by Congress and with a blanket FISA approval?

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