Last Thursday (Nov. 16) the Federalist Society and American Constitution Society at the Law School sponsored a "debate" between myself and Judge Richard Posner about what Judge Posner has called "pragmatic adjudication." (Thanks should also go to Chicago 2L William Rothwell for his work setting this event up.) The podcast of that event is now on-line here. Since it is long (about 1 1/2 hours), I thought I would try to say a little bit about both our subject and some of the "highlights."
The session was less a "debate" than a discussion, in which I invited Judge Posner to clarify his conception of "pragmatic adjudication." I took as the focal point of our discussion pp. 241-242 of his book The Problematics of Moral and Legal Theory (Harvard University Press, 1999), where he defends the view that the duty of judges is "always [to] try to do the best they can do for the present and the future, unchecked by any felt duty to secure consistency in principle with what other officials have done in the past" (241). Based on these materials, I put to Judge Posner four questions about his conception of pragmatic adjudication.
Continue reading "What Do and What Should Judges Do?" »
Debate Series: Stone Offers A Proposal
I don’t agree that the public “has already surrendered much of its communicative privacy by its profligate use” of modern means of technology that “create essentially indelible records” of our communications, purchases, etc. Certainly, it’s true that most people have embraced cells phones, email, and the internet without paying much, if any, attention to the extraordinary invasions of privacy they make possible. But this will change once people come to understand how vulnerable they are. It’s a bit like electronic bugging and wiretapping in the first half of the twentieth century. It took fifty years for courts and legislatures to begin regulating such conduct, but once people realized the danger, government electronic surveillance was declared unconstitutional and private electronic surveillance was declared unlawful. The same will happen with respect to the modern means of communication. Once people recognize the danger, they will insist on regulation. So, I wouldn’t leap to the conclusion that the public has “surrendered” its privacy. We are merely in transition.
(again, rest of Stone and response from Posner after the jump)
Continue reading ""Not a Suicide Pact": Round Two" »
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)
Continue reading ""Not a Suicide Pact": Round One" »
Geof, I am not persuaded by your analysis of the use of presumptions to resolve the tension (whcih you acknowledge) between civil liberties and national security. You start off promisingly by stating that "Logic, for example, suggests that in dealing with conflicts between the national security and civil liberties judges should start with a healthy dose of deference to military and executive officials. This seems sensible for several reasons." And you list the reasons, such as that the judges don't know much about national security and the cost of invalidating a national-security measure can be catastrophic. If this is right, then necessarily the false positives will greatly outnumber the false negatives. Suppose judges always upheld national security measures, that is, made the presumption irrebuttable. Then there would never be a false negative; that is, there would never be a case in which the court would prevent the government from responding effectively to a real danger. The only judicial mistakes would be false positives--allowing the government to respond to dangers that turned out to be nonexistent (or to respond disproportionately to slight dangers). If judges should hesitate to meddle in national security, as I believe they should (including for the reasons you give), then it is right that false positives should preponderate over false negatives, perhaps greatly. I don't, by the way, think that the presumption should be irrebuttable; for as I said, I agree with the result in Hamdi. (In the case of ordinary crimes, where the danger to the nation is much less than in the case of national security, the system reverses the presumption--false positives, namely convicting the innocent--are weighted more heavily than false negatives--failing to convict the guilty.)
Continue reading "H2H: What Side of the Civil Liberties-National Security Balance Should the Judicial Thumb Be On?" »
Geof, you raise three basic issues. The first is whether a domestic intelligence agency would have less regard for constitutional rights than the FBI, the second whether adequate attention has been paid to security measures that do not involve curtailing civil liberties, and the third whether the post 9/11 restrictions on civil liberties are more serious than I believe.
On the first, you are right that an agency that has no arrest or other law enforcement powers--and that is the essence of a domestic intelligence agency that is separate from any criminal-investigation or other police body--will not worry about the exclusionary rule except in cases in which it believes the best response to a terrorist threat is prosecution (and hence referral to the FBI). On the other hand, since such an agency would have no powers of arrest, and little interest in obtaining evidence of crime, the occasions for invoking an exclusionary rule against it would be fewer. Moreover, one reason for an exclusionary rule is recognition of the heavy costs that a criminal prosecution imposes on people. A domestic intelligence agency wouldn't be in the prosecution business. And finally, the exclusionary rule has considerably eroded, as you know, and the erosion isn't going to be reversed. It is due partly to the Supreme Court's having become more conservative but partly as well to the increased efficacy of civil-rights litigation as an alternative method of enforcing the Fourth Amendment and other constitutional provisions--though I acknowledge that such litigation is unlikely to be effective against surveillance where the government refuses to disclose whose communications have been intercepted.
Continue reading "H2H: Domestic Intelligence and Civil Liberties" »
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.
Continue reading "H2H: Yes, Civil Libertarians Are Too Willing to Sacrifice Innocent Lives—Richard A. Posner" »
On Thursday, Judge Posner led a work-in-progress Workshop on his forthcoming book, Not a Suicide Pact, which examines the inevitable trade-offs between security and liberty in times of national emergency. As always, Judge Posner made many provocative points. One struck me in particular, however. Judge Posner commended the Court's 2004 decision in Hamdi, in which the Court held that the government could not indefinitely detain an American citizen captured in Afghanistan, without giving him some sort of hearing in which he could contest the claim that he was an "enemy combatant." The details of such a heard were unspecified, but Judge Posner agreed that the Court was correct to insist on a fair hearing as a condition of extended detention. After all, why should we detain someone who is not an enemy combatant?
Continue reading "Judge Posner, Hamdi, and Korematsu" »