Stone Seeks Common Ground
Over the past year, Judge Posner and I have had many opportunities, both public and private, to debate the nation's response to the war on terrorism. In simple terms, I consider myself a "civil libertarian," whereas he describes yourself as a "pragmatist." Not surprisingly, we disagree on many issues. I usually argue that restrictions of civil liberties should be a last resort, considered only after we are satisfied that the government has taken all other reasonable steps to keep us safe. He usually argues that restrictions of civil liberties are warranted whenever the benefit to be derived from those restrictions in terms of increased security "outweigh" the cost to society of limiting the rights. Despite our disagreements, we have increasingly found common ground. I think it will be useful to explore our similarities, rather than our differences, to see if we can agree on some recommendations.
(after the jump, see the rest of Stone's argument, followed by Posner's)
To that end, I suggest we focus on the NSA's surveillance of international phone calls and emails. In my view, the President instituted this program in clear violation of the 1978 Foreign Intelligence Act and in probable violation of the Fourth Amendment. Judge Posner concedes in Not a Suicide Pact that the the process by which the President instituted this program might well have violated FISA, but insists that at least some version of the program would be good policy and can be upheld as "reasonable" under the Fourth Amendment.
At least in principle, I am open to this view. Constitutional rights are not absolute. In almost all instances either the text or the judicial interpretation takes into account the necessity for limitation. Whether the question is whether the restriction is "reasonable" or "necessary to serve a compelling government interest," we often "balance" the degree of limitation of the right against the strength and nature of the competing government interests. Thus, if the stakes are sufficiently high, even rights we ordinarily protect can legitimately be limited, and certainly this is so in times of real crises, as the Constitution itself recognizes in the Suspension Clause (governing habeas corpus). Civil libertarians who argue otherwise may be taking a wise and defensible position from the standpoint of advocacy, but they are not quite accurately depicting the real nature of constitutional law.
I am persuaded that post-9/11 we face a challenge that is unique in American history. Certainly, it is one we must confront realistically. For the first time ever, a small group of stateless individuals has the willingness and the capacity (either now or in the near future) to use chemical, biological, or nuclear weapons to kill not thousands, but tens or even hundreds of thousands of Americans. Although the magnitude of the danger they pose in the foreseeable future pales in comparison to the danger posed by the Soviet Union during the Cold War, a key difference is that the Soviets (and we) were readily deterrable. Although this was uncertain for a time, once both sides developed massive arsenals that could not be destroyed in a "first strike," the policy of Mutually Assured Destruction (MAD) ensured that neither side would attack the other. In the existing situation, however, given the nature and beliefs of the "enemy," we have no ability to deter an attack. Prevention, therefore, is essential.
There are, of course, many ways to pursue prevention. But because we must constantly search for the proverbial "needle in a haystack," advance information and identification of potential terrorists is critical. That inevitably leads to surveillance. The single best way to protect ourselves against such attacks is to identify the terrorists and disrupt their plans before they can act. This is presumably the goal of the President's NSA surveillance program, which authorizes the NSA to monitor international phone calls and emals whenever the NSA has reason to believe that one of the participants is associated in some way with a terrorist group.
Even putting aside the issue of whether this program violates FISA, the program is clearly problematic to a civil libertarian because it enables the government to monitor the communications of American citizens without either a warrant or probable cause to believe that a specific crime may be afoot. Such a program is worrisome for many reasons. It invades the privacy of potentially vast numbers of individuals who have done no wrong, it risks government misuse of the information obtained, it may chill the openness of a wide-range of communication, it places the government in the position of "Big Brother" and thus undermines the sense of individual independence and autonomy that is essential in a self-governing society, and it gives the executive branch the power to implement such surveillance without judicial supervision.
I want to explore whether the good Judge and I can reach agreement on some policy that would both give the government the authority to engage in some variation of this sort of surveillance and at the same time satisfy my civil libertarian concerns.
Posner Responds to Stone Responding to Posner
There are broad areas of agreement between my good friend Geoffrey Stone and myself, but I will skip those and focus on our remaining areas of disagreement, following the order of his discussion.
With respect, I do not think that “restrictions of liberties should be a last resort.” I prefer to see all proposed counterterrorist measures arrayed, and compared one with the other without a thumb on the scale. For example, if it were proposed to increase the number of FBI special agents tenfold and order them to follow on foot but at a discreet distance every Muslim in the United States suspected of terrorist sympathies, there would be no restriction of civil liberties, because there is no constitutional or statutory or common law right to be free from that mode of surveillance, whereas there are legal limitations on electronic surveillance. It would be odd to argue that the foot surveillance enjoyed a lexical priority to electronic surveillance in considering which proposed counterterrorist measures to adopt.
Civil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration. Maybe David Hume went too far (though I don’t think so) when he said that “The safety of the people is the supreme law. All other particular laws are subordinate to it, and dependent on it.” But I am not prepared to die at the hands of terrorists in order to defend the Miranda rule, or Brady, or Burton, or Mapp, or Doyle, or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.
I also disagree that comprehensive electronic surveillance, including surveillance of purely domestic phone calls and emails, poses a threat to civil liberties sufficient to outweigh the potential benefits. Those potential benefits are enormous. If we conduct comprehensive electronic surveillance, either terrorists will unwittingly reveal to the monitors information that enables the terrorists’ plots to be detected and foiled, or they will cease using electronic communications and resort to couriers to communicate among plotters who are not in the same city. (A third possibility is that the terrorists will foil efforts at interception by use of encryption or other electronic wizardry. If so, I assume and would hope that we would not waste money trying to intercept the uninterceptible.) History suggests that terrorists would reduce but not abandon their use of electronic communications (for in every war since the Civil War, our enemies have realized that we might intercepting their communications, yet have continued using vulnerable communications media anyway). Yet even if the only effect were to cause the terrorists to abandon electronic communication, we would be far ahead. The most dangerous plots tend to be those with the most participants, and an attack within the United States (like the 9/11 attacks) would almost certainly require coordination between terrorist leaders abroad and terrorists in this country, and such coordination would be very difficult to effectuate by means of couriers.
Since the American public has already surrendered much of its communicative privacy by its profligate use of analog cellphones, employers’ email services, and Web services such as Amazon.com and Google which create essentially indelible records of customers’ preferences, including political and sexual, I do not think the public would blanche at giving up a bit more to enable the government to monitor terrorist communications. The essential protection against governmental abuse of such a power would lie in rules that forbade the government to use information intercepted in such a surveillance program other than for national security purposes and that required that complete records of whose communications were actually intercepted, and why, and with what result, be submitted periodically to congressional watchdog committees, to departmental inspectors general, and to respected neutral agencies such as the General Accountability Office. I would be very interested in Geof Stone’s evaluation of such proposals.