« Reading Twombly Tea Leaves on Boylston Street | Main | Judge Posner (or at Least His Avatar) Talks to Second Life »

November 28, 2006


Feed You can follow this conversation by subscribing to the comment feed for this post.


Very well, Mr. BAC, I am prepared to concede your point:

IF terrorists are planning an attack that will kill 50,000 people, and
IF one of the terrorists is apprehended mere hours before the attack; and
IF there is no means to foil the attack other than torture;

THEN the President may torture that individual. However, the President is personally liable for insuring that these conditions are met, and if any of the three conditions are not met, then authorization of torture is a crime punishable by ten years imprisonment and a $100,000 fine.

There. That completely satisfies your requirements, and is something that I can live with. Now the question is, do you find this solution acceptable? Why not?


"You are all making a giant assumption that somehow curtailing civil liberties to address a national emergency will somehow permanently eliminate such civil liberties. This is simply not the case -- and history proves it. The writ of habeas corpus came back after Lincoln's suspension of it and the Japanese are no longer detained in camps."

First, BAC, the curtailment doesn't have to be permanent itself to cause permanent damage. The persons of Japanese ancestry who were interned in the 1940s will NEVER have those years of their lives back. If I am tortured for speaking out against the government, I may have to live with PTSD or worse for the rest of my life. At that point I don't give a sh*t if the Constitution comes back into full force. My life's already been permanently damaged by the government.

I'd further like to note that the vast majority of legal scholars view Korematsu as a disgrace. Saying "what you did was wrong, but we're not going to punish you for it" is about as weak and pathetic as the judiciary gets. It was a mistake then, and it's a mistake now.

Second, you're engaging in a pure numbers game. Thus, your argument only holds with strict utilitarians, or perhaps Vulcans. I'm neither. I don't believe that the needs of the many outweigh the needs of the few or the one. 50,000 people dying would indeed be a tragedy. But I'd prefer the potentially increased risk of an effective terrorist attack (although for damage of that magnitude you must be thinking about a nuclear bomb) to the much more real risk of living my life in fear of my own government.

Third, it's a fallacy to look at something that hasn't happened from an ex post perspective. Judge Posner himself, when he's true to his law and economics roots, admits as much: decisions must be made, and can only be made, with an ex ante view, based on the ACTUAL facts and statistical risks. I can't promise that I wouldn't regret our country's actions if 50,000 people died. But that's irrelevant. You can't run a country based on "maybes." Setting up a statistically improbable undesirable outcome doesn't prove anything at all. For one thing, you have absolutely no way of proving, EVER, that your 50,000 person scenario would not have happened if we had allowed unconstitutional monitoring and/or torture. We cannot live in a pretend world where we decide what "would have" prevented it when we in fact have no clue whether or not it would have.

I'll analogize: If I lobbied for laws making non-marital sex illegal, citing the risk of spreading HIV, you would think I was ridiculous. But then I hit you with a terrifying scenario: people keep having non-marital sex, and because of the increased spread of HIV from person to person, the virus mutates and can now be spread by skin-to-skin contact. Millions now contract the virus from a handshake. I tell you that in my hypothetical, the only way we could have prevented this was by outlawing non-marital sex. Now, if you lived in a world where this IN FACT happened, you might very well wish to go back in time and lobby for the law. But that's not a rational reason to decide, NOW, where this is a statistically improbable outcome, that you want to enact such a law. Again, we MUST evaluate this from an ex ante perspective.

Fourth, if you want to play a numbers game, make sure you get the numbers right. 50,000 dead in your ridiculous scenario. Okay. In your scenario, I take it we've also stopped our unconstitutional intervention in Iraq (since this is part of restoring respect for and obedience to the Constitution). So we've also saved several thousand soldiers' lives, not to mention tens of thousands of Iraqis. And yes, I do value a random Iraqi stranger's life equally to that of a random American stranger, as should anyone who genuinely respects human life. So the net number of lives lost is actually lower in your scenario than you claim it is.

Finally, abiding by the Constitution does not mean sitting around and twiddling our thumbs. There are perfectly legal and lawful ways of thwarting terrorism. What I am saying (and I take it others as well) is not, "No wiretapping, period." I'm saying, if you suspect someone of terrorist connections/activity, get a warrant from a judge to tap their telephone. I'm saying no secret hearings not subject to the checks and balances required by the Constitution. I'm saying I don't want executive power run amok. I'm NOT saying, tie the government's hands and don't do anything.


Eras -- If you are arguing that the President should be held accountable for his actions, I agree.

Cynic -- On your first point, I wasn't talking about permanent damage to the person, I was talking about permanent damage to the constitution. I agree entirely with your first point.

On your second point, I disagree that this is a numbers game. You can use numbers, logic, the Bible, darts or whatever else you like to evaluate the decision posited in the national emergency hypothetical.

On point three, I agree with you that the decision must be made ex ante, and I am saying that there may be national emergencies where, ex ante, the appropriate decision is to act contrary to the constitution.

Your fourth and fifth points are just more quibbling with the hypothetical to dodge the problem, which you have not addressed at all. Perhaps if you answer this simple question (with a yes or a no, preferably) it will help: Can you think of any national emergency that would justify acting in violation of the Constitution?

I already have Eras down as a yes.


"I already have Eras down as a yes."

A yes to what?

Did you not notice that my conditions #1 and #3 are impossible to fulfill in any real situation?


Fair enough, BAC. Then I'll answer your question equally simply: I cannot conceive of a national emergency by virtue of which violation of the Constitution would be justified.


Agreed. I cannot think of a situation where a search or seizure would lead to a national crisis, but not amount to probable cause for a search warrant, or alternatively, to an emergency situation in which a search could be considered reasonable, or, alternatively, that an arrest could not be made, or alternatively, that our intelligence agents could not find out what was happening, or alternatively, that our emergency systems could not work and people could not be evacuated, or alternatively, that emergency powers could be given to the president and hence to the military to help control the situation, or alternatively, that people could try to take the situation into their own hands under the millions of exceptions to criminal law liability, or alternatively, that there could not be some other plausible constitutional action that could be used to control the situation.

But then I guess the president would have to read his memos in order to try to avert a national crisis.


Thanks for the answers Curtis and Cynic. It is obviously worthless to discuss with you a situation you lack the ability to comprehend.

You both admittedly lack the ability to conceive of a national crisis that could only be resolved by acting contrary to the Constitution, so you both clearly lack the ability to discuss the appropriate action to take in such a situation which you find incomprehensible.

It is like discussing how to build a boat with someone who has never heard of water.


Nice try BAC. Water exists, no argument there. The national emergency you posit has never existed. The difficulty lies in determining whether there is a situation that this country is likely to experience that justifies suspending the Constitution. I would argue the answer is no. If you study the conduct of the FBI, CIA, etc. prior to 9/11, competence could have prevented 9/11. How about this country focusing energy on ensuring competent law enforcement. We've locked up how many in Guantanamo Bay? And have any of those interrogations led to intelligence that justifies the existence of Guantanamo Bay? Playing with the extremes has no value except to make rhetorical flourishes and instill fear. When you have no argument, when you know your position is contrary to the letter and spirit of the Constitution, you resort to positing extremes as a tactic to characterize those who disagree as unreasonable. That might work on Fox News, but not on the u of c blog.


Glad to here you agree that water exists, John boy, but I think you missed the point.

I'll try another analogy for you.

A football coash looks at his assistant and asks "this Sunday, if it is fourth and goal with one second left on the scoreboard and we are down by three, should we kick the field goal or go for the touchdown and win."

The assistant looks at the coach and says, "Coach, we have won all our games this season by at least three touchdowns. In the history of our school, we have never faced that type of situation. So, my decision is that we just win on Sunday by three touchdowns just like we always have."

The coach says, "I agree we should win by three touchdowns, but I really would like to understand what you would do if you were faced with going for the tie or the win."

The assistant responds, "Coach, I can't think of any possible way that we could end up in a situation like the one you are positing, so how can I answer your question."

And on and on they go all day long, fighting over the hypothetical without ever resolving the correct action to take in the "extreme" situation.

John, not a boy

BAC, John Shoop may spend all day long trying to resolve your football hypothetical, but a good coach would never spend more than a few minutes on it. A good coach would spend hours and hours on what to do on 2nd and 8 at the 30 yard line, not on what to do on fourth and goal with one second left on the scoreboard and down by three, especially considering that the team had won all their previous games by large margins. A coach who was trying to make his assistant look foolish would argue the point endlessly.


And the coach says: "I really need to know what is in your head, would you go for the win or the tie:

Assistant: " A good coach would spend hours and hours on what to do on 2nd and 8 at the 30 yard line, not on what to do on fourth and goal with one second left on the scoreboard and down by three."

Coach: "I agree, but I think this question tells me a lot about your style, gameplan, and approach to football, so answer it and we can move on."

Assistant: "Are you just trying to make me look foolish?"


Keep trying. An answer to your hypothetical - should certain constitutional rights be suspended if . . . - does not tell anyone anything meaningful about style, gameplan, or approach to national security.

Anyways, I'd rather have a coach who determined "style, gameplan, and approach to football" based on an answer to what to do on 2nd and 8 at the 30 yard line than based on an answer to what to do on fourth and goal with one second left on the scoreboard and down by three, when the team had won all their previous games by large margins.


"Thanks for the answers Curtis and Cynic. It is obviously worthless to discuss with you a situation you lack the ability to comprehend.

You both admittedly lack the ability to conceive of a national crisis that could only be resolved by acting contrary to the Constitution, so you both clearly lack the ability to discuss the appropriate action to take in such a situation which you find incomprehensible."

Real mature, BAC.

"Okay, answer this question for me: do you believe in aliens?"

"No, I don't believe in aliens."

"Well then I don't see the point in talking to you, you big fat stupid-head!"



Mr. BAC, I'd like to turn the question around and ask if YOU could conceive of a situation requiring abrogation of the Constitution. I want to be precise about this: can you conceive of a SPECIFIC situation requiring abrogation of the Constitution? For your line of argument to work, you must show that your hypothetical scenario really is possible. For example, you have posited an attack in which 50,000 people will be killed. Under what circumstances would a President know that 50,000 people would be killed? Your hypothetical scenario seems to require a nuclear device of some sort. Very well, under what conditions would the President know in advance that terrorists are in possession of a nuclear device? Under what circumstances would he know that the nuclear device is functional? Under what circumstances could he believe that all Constitutionally legitimate approaches would be likely to fail? Under what circumstances would he be confident in his belief that extra-Constitutional measures would succeed? You don't have to provide a complete answer to all possibilities -- just come up with ONE scenario in which you specify the precise conditions that require extra-Constitutional measures. No hand-waving, no stipulations -- just a specific scenario.


Also, BAC, the football analogy is completely inapposite. No one here buys that there is some imminent direct palpable threat to American society. Instead, we have some vague notion of an "out there" threat of terrorism. It's like we're at the forty-yard line with 2:30, 3rd and 7. It's ridiculous to ask what we should do when we're at the goal line with one second on the clock, since we're just not there yet.


Coach: [Throws his hands in the air and walks away.]


"We were unprepared. We did not grasp the magnitude of a threat that had been gathering over a considerable period of time. As we detail in our report, this was a failure of policy, management, capability, and, above all, a failure of imagination."

Thomas Kean, chairman, 9/11 Commission


And a failure to read memos.

spanish course

If only there had signs like this in London. For what we paid $170 per night for what we thought was a 3 star (not, a 1 star hotel) it was a rip off. We had cockroaches in our room, and it was a deluxe !

The comments to this entry are closed.