The University of Chicago Law School Faculty Blog

H2H: Yes, Civil Libertarians Are Too Willing to Sacrifice Innocent Lives—Richard A. Posner

My new book Uncertain Shield: The U.S. Intelligence System in the Throes of Reform is about the reorganization of national-security intelligence that Congress decreed (unwisely in my opinion) in the Intelligence Reform and Terrorism Prevention Act of 2004. It is not a book about civil liberties. I have written such a book—Not a Suicide Pact: The Constitution in a Time of National Security—which will be published in September. The only discussion of civil liberties in Uncertain Shield comes in a chapter in which I discuss the case for creating a domestic intelligence agency, on the model of Britain’s MI5 or the Canadian Security Intelligence Service, the latter of which figured prominently in the recent detection of the Toronto terrorism plot. A domestic intelligence agency or Security Service (the official name of MI5) is an agency separate from the national police (in the United States, the FBI) that has no arrest powers but uses surveillance and other intelligence methods to detect and foil terrorist and other threats to national security. The FBI has done badly as a counterterrorist organization for reasons I explain in my book, and the urgency of establishing a Security Service is underscored by the London transit bombings of July 2005 and now the luckily foiled Toronto plot. For, we too have a large Muslim minority (much larger in absolute terms than Canada’s), and these episodes show that we too must be concerned about the danger of terrorist attacks mounted from within the country by citizens and other legal residents. We must also be concerned about attacks from Canada, which has a Muslim minority of 600,000 who, like other Canadians, live within a short distance of our long and largely unguarded northern border.

H2H: Are Civil Libertarians Too Willing to Sacrifice Innocent Human Life?

I’d like to begin, Dick, with your most recent book, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform. (By the way, for those readers who haven’t read Uncertain Shield, it is a terrific analysis of the successes and failures of intelligence reform since 9/11). In this opening post, I’d like to focus on an observation you make in Uncertain Shield, somewhat peripheral to the central thesis of the book, but of great interest to me. (I suppose that’s the advantage of going first.)

Executive Signing Statements

The question of executive signing statements has been in the news much as of late, and I have been asked on several occasions to state my current views on the subject. I come to this subject as one who has been consistently critical of President Bush’s aggressive interpretation of the inherent executive power as a way to escape the limitations of Congressional controls over his power found in Article I of the Constitution.  Those concerns are obviously manifest in connection with the assertions of the President’s Commander in Chief Power (when that exact phrase is not in the Constitution) in control over military affairs, where I think that the President is grievously mistaken that his control over military matters is sufficient to negate the explicit power of Congress to “make rules for the government and regulation of the land and naval forces.”

I confess to taking a similarly bleak attitude toward any executive signing statements, which in my view carry the risk of skewing matters too heavily in favor of executive power.

Stop the Presses: FCC Unbundling Rules Upheld!

This afternoon, announcing that the “fourth try is a charm,” the D.C. Circuit upheld the Federal Communication Commission’s unbundling rules. If that statement doesn’t strike you as wondrous, it means that you are not a telecommunications person—lucky you—but also means that you are not sufficiently curious. (“You mean the FCC issued three sets of complicated rules over a decade, the courts rejected all of those, and now finally, on the fourth try, the D.C. Circuit blessed the rules?”)

Yes, exactly. A quick review. In February, 1996, Congress enacted a new telecommunications law, known to all as the Telecommunications Act of 1996. That statute required the FCC to issue the required rules in six months. Now, June, 2006—only ten years late—we finally have rules that have made it through the courts, assuming of course that the Supreme Court doesn’t jump in (which it did twice before).

How did we get into this mess?

Bush's Moment

It is time for President Bush to take a stand. Despite his cynical and exploitative support of a constitutional amendment that would ban gay marriage, he has long maintained that he is a compassionate and tolerant person who has no gripe against gays and lesbians, as such. He just thinks marriage is only for heterosexuals. Beyond that, though, the President has suggested that discrimination against any person – including on the basis of an individual’s sexual orientation – is wrong.

Debate: Stone vs. Posner

Next week, we launch yet another new feature of the blog: a debate forum where our bloggers will have the chance to exchange ideas in a series of related posts over a several day period. First up are colleagues Geof Stone and Richard Posner, on the topic of "Civil Liberties and the War Against Terrorism."

This debate will begin on Monday with a post from Geof, and should run the whole week. Readers can follow the posts here, or can access the full set of posts via the link in the left-hand column.

Alschuler on Ryan

At our annual Emeritus Luncheon on June 5, 2006, Professor Al Alschuler had a lot to say about the recent verdict in the George Ryan trial. Want to know why the verdict doesn't mean what the popular press said it means? Want to know why long trials are bad for justice? Want to know what Al thinks about RICO? You're just going to have to listen to the podcast. Instructions for the uninitiated are here.

A Podcast of a Different Color: Currie and the Constitution

Here at the Law School we are ever striving to provide something new, interesting, and fun for you. In this podcast, we think we might have found something unique as well. Our very own David Currie, to mark the occasion of his retirement from the Law School faculty after 44 years, has kindly read the entire text of the United States Constitution aloud for us to record. We have created a web page where you can listen to the recording in its entirety (which you may also do by clicking here), or listen to its component parts. We hope that this page will serve as a resource for educators wishing to enhance their teaching of the Constitution. We could think of no better person to bring this document to life than David Currie - constitutional scholar and actor extraordinaire. The Law School Class of 2006 (who graduated today - see below) received as their graduation gift from the Law School a USB flash drive loaded with this recording. We hope you, and they, will enjoy it.

So Long, Fare Thee Well, Be Back Soon

It is a bittersweet day at the Law School: Graduation. By the time the Class of 2006 next checks this space, they will be alumni of the Law School. To you we say: we have been honored and delighted to work and spend time with you during your tenure at the Law School and we will miss you very much. You are a truly fine group of men and women, and we look forward to seeing what the next stage of your lives will bring. To the JDs, LLMs, and JSD of the Class of 2006, we raise our glasses, offer our congratulations, and look forward to seeing you again very soon.

Janet Jackson’s First Amendment Legacy

I don’t know how Janet Jackson rates musically—Thriller is my only contribution to the Jackson family coffers—but she’s top-of-the-charts when it comes to the First Amendment. Janet’s Super Bowl flash has taken us to new legislation that will boost broadcast fines tenfold for content that the FCC finds sufficiently offensive. Plus Sen. McCain introduced a new bill yesterday that tries to push towards cable ala carte, so consumers could get Disney without having to take MTV.

Under the old law, each station faced a maximum fine of $32,500. The new maximum will be $325,000, plus the FCC has announced that it will count each separate use of unacceptable language as a separate incident. String together all seven of George Carlin’s words-that-you-can’t-say-on-TV and you could be out a quick $2.275 million (and remember this is per station broadcasting the content). I don’t know if the FCC has decided whether a topless woman will count as one incident or two.

The House vote on the fine increase was 379-35, while the Senate approved its version of the bill using its unanimous consent procedure, meaning that no Senator opposed the bill. At a time when we seem to be eager to vote on new constitutional amendments, it would be interesting to see how many votes some of the old ones would get. What do we think the over-under would be on the First Amendment?