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.
Civil liberties came up in the chapter on domestic intelligence only because I anticipated that civil libertarians would be strongly opposed to the creation of such an agency. But after a conversation with you earlier this month, Geof, I have come to doubt that this is so. As you pointed out in our conversation, the civil libertarians’ concern is not with the specific organizational structure of domestic security but with what the structure does. A Security Service would have no powers that the FBI does not already have. In fact, it would have fewer, because it would have no arrest powers (there are also certain statutory powers regarding the obtaining of documents that are vested only in the Department of Justice or even in the FBI specifically). If anything, a Security Service would be more temperate in its conduct with respect to the Muslim community, since the Service’s only concern so far as that community is concerned would be heading off terrorist attacks, and to do that would require close and even cordial cooperation between our security personnel and the leaders and members of the community. Such cooperation is easier to forge by an agency that does not have law enforcement responsibilities.
All this said, I am concerned with what seems to me an inadequate appreciation by civil libertarians of the terrorist threat; and that is reflected in your posting. You imply, though in more measured terms than a recent article by Steve Shulhoffer, that restricting civil liberties—if that is how warrantless electronic surveillance and data mining should be described, a proposition that I question later in this posting—should not be considered until all other means of protection against such attacks have been exhausted. The ACLU, whose position this is, is like a union that acknowledges notionally that the industry that it has organized is in trouble, but insists that before there will be any worker give-backs the industry must redesign its products, merge companies, lobby for tariffs, raise prices, and cut salaried personnel—none of which measures may actually be feasible, or doable at reasonable cost. Similarly, in the case of terrorism, it is possible to imagine a host of measures that would strengthen security while leaving civil liberties intact—including creating a domestic intelligence agency. Unfortunately, because of opposition from the FBI and because of other political obstacles, such an agency is unlikely to be created until there is another terrorist attack inside the United States. Other possible measures, such as hardening various potential terrorist targets, are too costly, likely to be ineffectual, politically infeasible, or otherwise simply not in the cards. Should it turn out that curtailing civil liberties was the only option for enhancing security, it would be no answer that, in principle though not in practice, alternative measures could enhance security equally.
Since security must be traded off against liberty, if the government were contemplating a really big cutback in civil liberties the concerns you express in your posting, Geof, would deserve most serious consideration. But the only serious curtailment of civil liberties of Americans that has occurred in the post-9/11 era, a curtailment that I criticize in my forthcoming book and that the Supreme Court invalidated in its Hamdi decision, was the denial of habeas corpus to U.S. citizens arrested in this country on suspicion of terrorist activity. (I would extend the right of habeas corpus to anyone arrested in this country other than in times of outright war.) The other post-9/11 curtailments are small beer. As I have argued elsewhere, the currently most controversial antiterrorist measure operative in the United States—the National Security Agency’s program of electronic surveillance outside the scope of the Foreign Intelligence Surveillance Act—seems to me, as to a majority of Americans, to be a reasonable measure, whether or not it violates FISA. FISA is designed, so far as counterterrorism is concerned, for monitoring the electronic commmunications of known or suspected terrorists. The more urgent need is to discover who the terrorists are, and if you don’t know who they are, you can’t get a warrant—which does not make it any less important to use electronic surveillance to try to discover who they are. Without such surveillance, our search for terrorist cells in the United States is blind and deaf.
I do not recommend, as readers of your posting might suppose, criminalizing the ranting of radical imams in the United States. There are problems of definition, as you stress, and there is the danger that if we shut up our enemies we will be denied important information about their thoughts and plans. (A Security Service would want to monitor the imams, not silence them.) But I can imagine a situation arising—it has arisen in England—where a nation’s Muslim minority becomes such a tinder box that radical preaching could set it aflame, and if that ever happens here I would not like to think the concept of free speech so unbending and doctrinaire that it would begin to resemble the suicide pact that Justice Jackson warned us against transforming the Constitution into.
You ask, “How much should we care, for example, if the government criminally punishes the radical imam who condones or glorifies terrorism?” I don’t think we should care at all, since such speech is worthless. Do you agree? The only objection you give to criminalizing such speech is the problem of definition (“What does it mean to glorify or condone terrorism? Does a book arguing that terrorism can be morally justified fall within your rule? What about a blog attacking the president for authorizing torture? A magazine that publishes photographs of American soldiers killing Iraqi civilians?”). I agree that this is a problem; that is a reason that I don’t want to criminalize such speech. But I want to leave room for doing so should the need arise, rather than freeze our power of response in the name of constitutional abstractions.
When I said in Uncertain Shield that civil libertarians seemed willing to pay a considerable price in innocent human life in order to defend constitutional abstractions, I was commenting on your response to Prime Minister Blair’s decision, in the wake of the July 2005 terrorist bombings of the London transit system, to ask Parliament to authorize “a series of new antiterrorism measures, including deporting foreign nationals who justify the use of ‘violence to further a person’s beliefs’; authorizing the denaturalization of British citizens who engage in ‘extremism’; and legislating a new ‘offense of condoning or glorifying terrorism.’” Without considering the likely efficacy of such measures or the existence of less costly alternatives, you declared your opposition in the following words: “the citizens of a democracy must be free to hear even the most intemperate and inflammatory criticism of their nation’s policies and practices, unless it expressly calls for immediate violent action and creates a clear danger that such action will occur imminently.” The qualifications that I have italicized in the “unless” clause emptied that clause of significance. You were telling Britain that it must not try to prevent radical imams from preaching the glories of suicide attacks on London commuters no matter how clear it is that such preaching results in violence, provided the imams do not “expressly call for immediate violent action”—provided in other words that they just say “bomb the subways and you’ll go straight to heaven” and don’t specify a date for the bombing. I thought, incidentally, that it was rather an impertinence to tell a foreign country how to respond to a grave internal threat concerning which you claim no expertise—and might there not be a reason that England does not have the identical conception of freedom of speech that the U.S. Supreme Court has?
It was “citizens of a democracy” who carried out the London bombings, and it was citizens of another democracy whose terrorist plot was recently foiled by the Canadian government. Should we be seriously threatened by U.S. citizens mesmerized by the preaching of radical imams, I would hope that your “slippery slope” concerns, valid though they are, would not, in the name of the Constitution, paralyze response.
You want a clear rule, and are willing to pay a high price for one. Yet the body of constitutional law, which you appear to venerate, contains few clear rules. The law of free speech is not clear. The constitutional protection of speech is riddled with exceptions—think only of the Supreme Court’s decisions this term dealing with the power of Congress to cut off funding to universities that refuse on “compelled speech” grounds to host military recruiters, and with the non-right of a public employee to free speech when he is acting within the scope of his employment. Anyway, the Brandenburg rule, which you defend and which you paraphrased in your comment on Blair’s proposals, is no clearer than the Dennis rule, which I prefer. The Dennis rule is simply more permissive.
If you want clarity above all, I commend to you a historical-literal approach, whereby the First Amendment binds only Congress—not the executive branch, not the states—and “freedom of speech” bears the meaning that it bears in Blackstone—a prohibition of censorship, but no restriction at all on the power of a jury to punish speech after the fact on grounds of sedition, blasphemy, defamation, or indeed any ground that legislation or the common law recognizes.
And if you don’t like the clarity of literalism and originalism, then in this era in which advanced legal thinkers of liberal leanings tell us that we should look abroad to see how enlightened foreign nations resolve constitutional issues you should consider whether the laws protecting speech in countries like Britain, Germany, and Canada—laws that protect speech less capaciously than our First Amendment as currently interpreted by the courts does—are unworkable or a threat to democracy. Did free speech suffer a mortal blow, and was democracy placed on the road to early extinction, when these countries made it a crime to deny the Holocaust? I think that you should answer “yes” and use your professorial ingenuity to pose hypothetical questions showing where such a prohibition must inevitably lead. What is “Holocaust”? Is it just the Nazi campaign to exterminate the Jews in World War II? What about Leopold’s slaughter of blacks in the Congo? The slaughter of Rwanda’s Tutsis by the Hutus? The Armenian genocide? Could not all these episodes be described as “Holocausts”? And go to the all-creatures.org home page and there you will be able to link to an article entitled “Animals Suffer a Perpetual ‘Holocaust.’”
And what does it mean to “deny” the Holocaust? If someone says that the Nazis killed only 3 million Jews, not 6 million, is that denial? What if he just says that the Holocaust has been exaggerated? Or that the killing of millions of Jews has not been proved beyond a reasonable doubt? Or that it wasn’t a Holocaust, but merely just retribution for wrongs committed by Jews? Are any or all of these forms of denial punished by the laws? If the answers to these questions are not certain, does this mean that these countries are in process of stifling free speech? And what of hate-speech codes at private colleges and universities in the United States?
But since I do not favor criminalizing the speech of radical imams—although I want the government to keep tabs on that speech and inquire into these imams’ sources of funding and contacts with terrorist networks—I don’t think there’s much of a real issue between us concerning free speech and national security. I would be content if we had a Security Service that operated under all the legal restrictions that constrain the FBI in its domestic-intelligence role. I take it you would be content as well, although we might differ about what those restrictions are, specifically restrictions on electronic surveillance. As to that I will say for now only that Americans have already sold most of their privacy to commercial vendors, health insurers, employers, motor-vehicle bureaus, and providers of online services such as Google, and that the incremental “invasion” of our remaining privacy caused by government data mining for clues to terrorist activity would be slight if that data mining is conducted with appropriate safeguards (not including warrant requirements), and well worth the benefits in counterterrorism.