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June 27, 2006


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Or perhaps he is just advancing the precautionary principle as a plausible pretext for spending $550 billion on his friends' companies in the military industrial complex each year. Instead of actaully believing this stuff, he's likely just exploiting that heuristic where people think low probability events are far more likely to happen if they can conjure a scary and vivid mental image of its consequences. You give the guy way too much credit to take him at his word professor.


LAK is exactly right. The One Percent Doctrine, translated into English, means "If I think it's important we're doing it." It has nothing to do with precaution or defense whatsoever, it's a purely offensive strategy.

Frederick Hamilton

Professor Sunstein,

Any situation with a 1 in 100 risk of a bad outcome and how to address it is determined by what the 1 in 100 adverse situation would be. With terrorism it was a low probability that terrorists would gain control of 4 passenger airliners simultaneously and fly 2 into the WTC Twin Towers and 1 into the Pentagon (if not for brave Americans the 4th into either the White House or Congress). I suspect experts on risk would have put the odds of that at much higher than 1 in 100.

Now we know the risk of dying at the hands of terrorists is high but still probably less than getting killed in a car accident. For those killed in Bali, London, Russia, Madrid, Jerusalem, Baghdad, et al the risk was 100 in 100.

It is interesting to try to compare the risks of global warming and terrorism, but we now know (and have known since Beirut) that the risk of terrorist death and destruction is high. We don't really know the risks with global warming. I am not sure we know that global warming is real. I know that is not the politically correct opinion to have, but there are valid disagreements as to global warming. What is interesting is that there is not much disagreement on what success the world can have by changing behavior to prevent global temperature changes. None. Scientists think in terms of a 0.1 degree change in temperature (maybe) if very costly changes in behavior are implimented. For starters the most rapidly growing economies (India and China) want nothing to do with behavioral changes. So even if there needs to be a comparison between global warming and terrorists, the gain from attacking either would favor attacking the terrorists and not the global warming.

I would like to see the University of Chicago Law Faculty address the increasing probabilities of terrorist attacks if we keep leaking activites in the press about our methods of fighting and detecting the terrorists.



I think they are too intelligent to waste their time on that question. An increase of 1.0001 to 1.0002 percent due to the disclosure of warrantless spying on Americans is not worthy of such an inquiry.

A better inquiry might be to explore how the threat of terrorism increases when your military is stationed all over the globe and kills innocent people on a daily basis, further impoverishes already disgruntled groups and violates human rights.

But we are already getting off topic.

[seriously though, do people in their right mind think the NY Times is increasing the chances of a terrorist attack in any statistically meaningful way by publishing stories about the executive branches spying on Americans? I find it hard to believe.]

Frederick Hamilton


Apparently Tom Kean and Lee Hamilton thought the release of the info serious enough to plead with Bill Keller not to print the piece. Those two co-chairs of the 9/11 Commission have never been Bush Administration cheerleaders, so, were they out of their minds?


If their reason was out of concern for an increased probability of a terrorist attack, then yes. I imagine all sorts of other political factors were at work there though.

If decreasing the probabliity of a terrorist attack is the goal, their efforts would be better spent trying to convince Al Jazeera not to show images of chunks of the brains of Iraqi grandparents and children smeared against the walls of their homes after US soldiers massacred them.

Frederick Hamilton


You are off the wall. So much for a reasoned discussion. Stay tuned into Al Jareeza, it'll be good for your mind set. Was it George W that addled your brain or has it been that way since birth?

Yeah, Kean and Hamilton did it because they were sucking up to Bush. They are pretty careless and crazy guys. Please.


Do tell what was unreasonable about what I said?

Whatever it is you find unreasonable, it is certainly more reasonable than suggesting the press is putting us in danger by exposing this administraion's decision to sodimize the 4th amendment with no lubrication. An implicit call for the press to be silenced because they are exposing our government spying on private citizens? Now that is the height of unreasonable and poor thinking, whatever fearmongering reasoning you wish to advance. I'm a hell of a lot more scared of a executive branch acting more like a king.

Wasn't Lee Hamilton the one who criticize the MSM for mischaraterizing the comission's findings of the "link" between Qaeda and Saddam? Ah yes. he was.


Isn't Tom Kean a Republican? Ah yes, he is.
Aren't his son's political aspirations and interests affected by the overall perception of the Republican party? That would be a yes, again.

Isn't the freedom of the press, (you know the whole First Amendment thing) just slightly more important to our way of life and system of governemnt than arguable, purley speculative, marginal increases in security risk due to full disclosure of spying and data mining on average citizens? I'll answer for you: Yes.

Don't fall apart on me and get all personal Frederick. My addled brain can't take much more than this low point in American history.



Perhaps you can answer a question for me.

Does Bush base his authority to conduct these spy programs (and ignore legislation when national security demands it) on an inherent constitutional power of the President as commander in chief of the armed forces?

Or is this power as commander in chief to act in the interests of national security contingent on Congress granting him war powers in the first place?

I've oft been confused on this issue.

My apologies for the continued off topic comments.


So, Cass,
Are you saying that it would be prudent to nuke Islamabad? Did you run this by Posner and the other conjurers on the faculty?



You ignored the latter part of his post, which was precisely about the possible further costs from taking efforts to reduce the risk of terrorism. One can imagine that nuking Islamabad would have many, many costs which could possibly outweigh the risk(s) mitigated. These are the calculations, I presume, Sunstein is alluding to.

Kimball Corson

Here is the problem and the reason we don’t handle these situations well. We do not understand that precaution should be only be taken against each potential type of terrorist attack until the marginal expected gain in heightened security (or lowered probability of successful attack) is just equal to the marginal expected loss from a successful attack of that type. Life can be valued just as workmen’s comp programs do it and each of us regularly values our own life in our daily living. We incur a risk of death, at some low level of probability, every time we cross the street to buy a $0.50 newspaper. The problem is we don’t consciously think this way and view each life as priceless so no expense should be spared in each and every quarter to protect us or so we think. Viewed so, things quickly get out of hand and we remain terrorized as we go broke trying to protect ourselves from a low probability of death. Indeed, the enemy does not really so much seek our death as it seeks to terrorize us and have us go about the business of sabotaging our own lives, purses, institutions and civil rights. So far so good. And we will not even listen to what they have to say.

Kimball Corson

As to LAK's comment, Cheney and his cronies have certainly not gotten poorer by hopping in and out of government as they have.

Kimball Corson

Frederick, as post 9/11 analysis makes clear we were asleep at the wheel on 9/11 and no one, not even bin Ladin, expected the Twin Towers to collapse. Without that unexpected loss, the torrorists' efforts for that day would have come to very little in term of the loss of life. Traffic deaths on 9/11 would probably have been greater. We just got spooked big time then and still have not recovered from being so successfully terrorized. We even went to war, susposedly over this unintended accident. Talk about out to lunch. I think the 1 % doctrine is largely ex poste rationalization for what we have been doing since.

Kimball Corson

LAK is on a roll.

At least he has been listening to bin Laden. Our government does not seem to do that. What if terrorist attacks and threats would drop by oh say 70% if we listened to bin Laden and got out of the Arab peninsula and moderated our support for Israel by giving the Palestinians more consideration? How much would that cost us? Or rather, how much would we save all around?

Kimball Corson

I'm sorry. Did I miss something or is the One Percent Doctrine the share of the GNP that is going to Cheney and his immediate Republican friends?

Frederick Hamilton

Yes, we were asleep at the wheel on 9/11. And just because no one ever thought an airliner could bring down the towers (in fact the engineers wrongly thought the towers could survive a direct crash of a large airliner) and that the loss of life would have been less had not the towers fallen, the events of 9/11 would have been horrific in any context.

Since we can all agree we were asleep at the wheel, isn't it the country's position, the 9/11 Commission's position that we need better dashboard data while we are at the wheel to prevent further terrorist activity? I have read that since 9/11 there have been "thousands" of terrorist attacks. That post dates Beirut, the USS Cole, the Embassy bombings, the Kohbar Tower attacks. I know there are those of you that begrudge the Bush/Cheney Administration effort to deal with this threat. Does it really matter whether a Republican or Democrat is President when it comes to protecting the country?

This Islamic fundamentalist jihadist terror campaign started well before the Bush Administration, will last long after the Bush Administration and is something our citizens care about and rightfully so.

Whether you all like it or not, there will be secret programs in any U.S. administration that are targeting the terrorists. Do I need to know? No. Should there be oversight by Congress? Yes. Should papers such as the New York Times be publishing the secret programs? No. A wonderful question is the one of the media's culpability and participation in illegal leaking of this type of data vis a vis the Espionage Act and other applicable laws.

In a couple of years, there will be a newly elected President. Republican? Democrat? Who knows. Just as the last two elections, I suspect it will be very close. Do we want the next administration to be conducting aggressive, secret programs to protect America and our citizens? I think a LARGE MAJORITY of Americans would say yes. I guess I know what most of you responders are going to say, but I don't believe you represent the thinking of most Americans.

As far as listening to bin Laden and reducing terrorist attacks by 70% because of accepting bin Laden's thinking, getting out of the Arab peninsula, giving Palestinian's more consideration, et al, that sure is something tried by many a leader over the centuries and found to be a great mistake. Neville Chamberlain comes to mind. President Bush has called for an independent Palestine, Secy Rice is trying to get the Israeli's as we speak to back off on invading Gaza. It isn't easy and I am not sure the answer is listening to and agreeing with bin Laden. To each his own, but I am not sure what good has ever come of appeasment.

The Law Fairy

"Do I need to know? No. Should there be oversight by Congress? Yes."

Frederick, you may not want to know, but plenty of us care if our civil liberties are being sacrificed. Do you honestly have that much faith in Congress? Keep in mind Congress is the one who year in and year out caters to special interest groups by, for example, failing to fix social security (either by revamping it or dumping it) -- all the while securing comfy retirement plans for every single member of Congress. Congressmen are too busy getting their backs scratched to care about a few civil liberties. I don't trust Congress to protect my rights. That's why I'd rather know enough so I can try to protect them myself.


Fredrick, that people are scared shitless is not the poin. The issue is the response to risk.

We've killed more Americans now in our response to 9/11 than actaully died in it.We've killed 10s of thousands as a response to a lucky and successful terrorist attack. We spend 450B a year pre war on th epenagon, then another 100B orso on the "war."

Imagine if those resources were used to prevent car crashes, cancer, heart disease and obesity. Did you take Sunstein's class on behavior? The number of scared people out there is hardly the best measure of what is an isn't reasonable precaution or reasonable response to risk. Did we spend trillions on weeding out domestic terrorism after OK city?

I'm glad you are happy to live in ignorance as your government spys on you. Clearly you have nothing to hide, nothing. I can only imagine the comfort your blissful ignorance provides you. The rest of us are not, nor is it a measured response to the risk of terrorism, nor are our resources being used to protect us in the most efficient way.

P.S. go see the AL Gore movie and read th AP piece on how environmental scientists have all agreed the science s correct.

We've nothing to fear but fear itself. Screwface knows who feels frightened.

Kimball Corson

Frederick, there is some worth to your comments, but also some criticism too. I proceed in no particular order. Aside from the anomalies we agree upon, 9/11 would have been – if not horrific – at least more terrorizing than the same number of freeway deaths, but only because we expect the latter and not to be attacked. So we got spooked and are now terrorized. But I doubt seriously that there have been “thousands” of terrorist attacks since which we have foiled, especially if this herd of goofballs recently rounded up in LA to considerable fanfare is any example. If there had been, secrecy would have been waived by the Administration to crow about any 9/11s prevented. National security has its political limits when your ratings are bad. Too, while a Islamic fundamentalist jihadist terror campaign of sorts may have predated Bush, we did not give it the time of day or incur any real personal injury until the events of 9/11. In short, earlier we were not terrorized by it as we are now, after bin Laden became the chief orchestrator. Neville Chamberlain never had a credible peace proposal put to him from bin Laden and the Brits and Americans have never managed to keep their busy fingers out of the Middle East, but our mutual troop count has never matched what it is now either, as bin Laden would point out. We are determined to mind their business too. As you point out, favoring or aiding the Palestinians a bit relative to Israel is not so hard to do, so that now if we could now just get our troops off Arab soil, we might really have a chance to stop or materially slow the war of terrorism against us. Think about the money and lives we might actually save. To understand bin Laden’s consistent and repeated concern, imagine Arab military forces occupying American soil to bring us a true theocratic form of government to set our souls free. We would be doing more than tossing water balloons in the Middle East. As for the loss of our civil rights our leaders have inflicted upon us without our consent, in secret and probably in violation of law, I am not persuaded that their compromise by the Bush/Cheney contingent has been to any great avail or any avail at all, and I am not sure I would believe it, were Bush or Cheney to say so, in general terms, so poor is their track record with the truth these days. It is on par with their level of candor and transparency. I think that there are many thoughtful Americans who would agree with me here and are unhappy with the handling of these matters from the get go. The truth is that with Bush and Cheney at the helm, we have done very little well or right in this whole affair and the consequences of the mishandlings for all of us have been dire, beginning with misjudgment of terrorist intent with the towers attacks, to invading Iraq for weapons of mass destruction to finally ignoring bin Laden now on how to stop this foolishness. I am not really persuaded we have gotten anything right, or even done better than Bush’s academic record at Yale.


To get back on topic,

Obviously the difference in our response to terroism (expensive deadly destablizing premeptive war) and global warming (nothing) is in part informed by that availability heuristic where people inflate the probability of low probability events if the costly outcome is vivid and scary and could affect the individual personally in a manner they can understand immediately. The costs and consequences of global warming are not as available to the average citizen, so there is less concern on the part of the public. New York slowly being swallowed by the sea is exteremly costly but not as scary so people are less concerned even should the costs be far greater and the probability higher.

Add to that the self-inerest of the rich white republican military industrial complex running men we have in office, and you have a recipe for making me rich off of my Haliburton futures contracts and a little fear mongering.

"the New York Times and other news organizations ought to think long and hard about whether a public’s right to know in some cases might override somebody’s right to live, and whether in fact the publications of these could place in jeopardy the safety of fellow Americans...."

"Mushroom clouds!"

God bless you Dick Cheney! My 3rd home will be dedicated to you!

We'd be better off spending 100B a year on cancer research and heart disease.

and half of the 450B we give to the pentagon each year to spend on Republican comapanies on educating out fearful public so they don't continue to live in ignorance, or worse, want to.


To paraphrase "Yes, let's just give the jihadis what they say they want and everything will be all right. Let's just give them Israel. Maybe then they'll go away and leave us in peace."

Echos of Neville Chamberlain--he was willing to give Czechoslovakia to Hitler and got war (in about eighteen months) instead of the "peace in our time" that he thought he was getting.

Those who forget the past are condemned to repeat it.


I don't think anyone on this board is calling for "giving up" Israel,(not that it is ours to give- they can take care of themselves at thispoint wuite well) nor is comparing removing our military from soverign foreign countries like Saudi Arabia the same as giving up Czech. to the Nazis.
We would not be handing the country to Jihadists (anymore than it is already run by them, which we seem to be fine with so long as the oil keeps flowing)

This is all off topic.

The real issue is why we spend $550B a year on the Pentagon and its preemptive wars and do not pass a single law regulating gasoline consuption of cars and oil and other fossil fuel consumption by the power industry.

Why if the risks are equally significant.

fear and the avaiablility? heuristic is my answer. Frederick says there is no real threat from Global Warming so that is why. A plausible if flawed analysis.

Jihadist are not a country, they are a bunch of disorganized angry conservative religious fundamentalists. Let's not forget it or confuse it.

If the idiots in Florida taught us anything it is that poor and marginalized people are the ones who are angry and who are a threat to this country, wherever they live, so long as this country is repsonsible for makingingthe rich richer and the poor poorer here and elsewhere.

Frederick Hamilton

I don't agree with the sentiment that "weve killed more Americans now in response to 9/11 than actually died in it". What do you mean we? Just over 2500 deaths of Americans (civilian and military) since the start of the Iraq war. Over 3000 died on 9/11. I can only guess that you really don't mean "we've killed". You surely mean have been killed in the war.

Now Kimball. You are playing fast, loose and glib with the Global War on Terrorism. For starter Chamberlain did have the "peace in our time" accord with Hitler given in Munich prior to World War II. His appeasemnt has been denigrated ever since.

When you add up the terrorist attacks since 9/11 in Iraq, Israel, Jordan, Egypt, et al it does add up to well over a thousand.

Our death toll since the war in Iraq at approximately 2500 is although tragic, very small compared to the death toll of 400,000 Americans in World War II over just about the same time frame.

Those goofballs were rounded up in Miami, not LA. I really don't have a response to the attacks on Bush and Cheney. I just chalk up all that vitriolic rhetoric to a roiled mindset and realize no amount of discussion will persuade any of you that just maybe Bush and Cheney are not the evil idiots you try to make them out to be.

As to the Law Fairy asking if I have that much faith in Congress? You know I actually do. I am that ol' time thinker that does place faith in combined wisdom of Congress, the Courts and our Executive branches and in the main do trust them to do the right thing.

Also, as a rube and dolt, I believe there will always be secrets in a time of war that both Democrat and Republican administrations will keep from the people. Some of it will have to do with spying on the enemy. Some of it will be about tracking down monetary transactions of the enemy. Some will be about military plans for the next battle. Yep. I do to an extent trust my government. I also have a healthy distrust of government on a number of issues. I just give them some lattidude when it comes to protecting me and my family and fellow Americans. You can rant and rave and spew invectives about Bush/Cheney all you want. In November 08 they'll be replaced. Then it will be other scoundrels taking your liberty away. Which as Judge Posner has stated, they really haven't taken anything away.


2,740 Americans died in the September 11 attack.


2,527 Americans soldiers have died in Iraq
307 Americans soldiers have died in Afghanistan


So you're wrong there Frederick. My guess is it's not the first time.

And I know the tens of thousands of Iraqi civilians who have died don't mean much to you Frederick, but they do to their mothers and fathers sisters and brothers and children.

Care to try again?

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