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June 18, 2006


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Transatlantic lawyer

When I see that a judge and law professor at a major US university makes (four times, in a single blog post) an explicit, sweeping association between the Muslim community and terrorism, I feel doubly troubled. First, because it proves that the *system* isn’t working properly, if it admits this kind of person to hold such high social responsibilities. Second, because it undermines the arguments of those who, like myself (an American citizen living abroad), have to suffer discrimination based solely on a personal circumstance - in this case US citizenship.

Scott W. Somerville

On September 11, 2001, I said, "Now we need to revive the privileges and immunities clause. That is the only way to make sure citizens can criticize their own government in a time of war while empowering law enforcement to hunt down those who would kill us in our sleep."

So far, we're still trying to protect America under the one-size-fits-all notion of 14th Amendment "liberty" instead of the more useful theory that citizenship has its privileges.

The Constitution is NOT a suicide pact. But we need some fresh constitutional law for today's challenges. New wineskins for new wine!


It says nothing about the Muslim community as such to recognize that a minority of that minority represents the chief national security threat we face: self-described Muslim terrorists. It is notable that such a large proportion of potential and actual terrorist incidents--particularly high profile incidents--in the United States in recent years involved Muslims, particularly when Muslims make up such a small percentage of our population. These include the '93 WTC bombing, 9/11, the El El Ticket Counter attack at LAX, The Lackawama Six, Sgt. Akbar's fragging incident, Earnest Ujamma's Al Qaeda training camp in Oregon, the DC Snipers, etc. These crimes are thankfully rare, but so deadly and crippling they must be taken seriously. The half-hearted response of the Muslim community to these fifth columnists within their midst have hardly been encouraging, particularly when paired with the often extreme rhetoric emanating from Saudi-funded American mosques. In other words, American Muslims, more often than not, have asked for understanding and tolerance before they have done very much to show loyalty to America and its values.

I applaud Judge Posner for recognizing something that is often obscured: liberty and order are not situated like an on/off switch. We do not "undo liberty" or "let the terrorists win" the minute we adjust the pre 9/11 balance between liberty and order. They are more like a rheostat, situated on a continuu, the balance of which should be adjusted for changing circumstances.

Likewise, I applaud him for recognizing that appropriate generalizations supported by evidence are distinct from cruel and malevolent stereotypes. I would no more want law enforcement to ignore religion when we face the threat of religious terrorists, then I would want law enforcement to ignore the sex or race of an offender when patterns of behavior suggest a particular group is more likely to be involved.

Transatlantic Lawyer makes it plain that national security and safety from terrorism are simply not that important to him when they conflict with various "politically correct" shibolleths, such as the facile and completely unproven assumption that one's status as a Muslim is not a major factor that should be used by law enforcement in allocating scarce resources to combat Muslim terrorism.

But I suppose we mus be on guard for the rash of Presbyterian suicide bombers just in case.

The Law Fairy

Roach, I took Transatlantic Lawyer's point to be precisely about safety -- and the fact that white Christians are not the only people about whose safety we should be concerned. I don't know your thoughts on Korematsu, but your post makes it sound as though you may approve of the decision, which takes you out of line with modern constitutional jurisprudence.

TL wasn't talking about political correctness; s/he was talking about the fact that s/he is less safe abroad for no other reason than the fact that s/he is a US citizen. If we hold preconceived notions about others and correspondingly make it less safe for them because of immutable characteristics, this is immoral. TL, living abroad, has developed empathy for these persons that the rest of us would do well to engender.


I have mixed feelings about Korematsu, but I do not believe it has ever been reversed. Has it?

I agree that we should not only be concerned about the safety of White Christians; that said, we do have to be concerned about the safety of our citizens as a whole, and an obtuse refusal to recognize the subculture and community from which the Muslim terrorist threat arises would endanger both White Christians, Black Christians, White Jews, Mexican Atheists, and Non-Terrorist Muslims as well.

There is also a question of harms. It is not as harmful to listen into someone's phone call, subject him to greater scrutiny at the airport, or pick up public literature at his Mosque than it is to be incinerated in an about-collapse-skyscraper-due-to-the-deliberate-impact-of-pirated-airliners. We must way costs and benefits in this as in all questions of civil liberties.

What liberties might we reasonably limit to avoid this unfortunate scenario, Law Fairy? And what extra sacrifices might the community from which all these people seem to come from be asked to make? By way of comparison, gun owners endured a great deal of scrutiny after the Oklahoma City Bombing, even though only a small number were involved in the militia movement and an even smaller number of those were involved in the OKC bombing. But most gun owners recognized the quickest way to restore a normal state of affairs was to be vigilant for the extremists in their midst; the extremists in the militia movement were quickly identintified, rooted out, and in many cases prosecuted. Non-gun-owners had little sympathy with their complaints about government intrusion. The swift and widely accepted application of law enforcement resources has led to the swift return to a normal state of affairs.

We've not seen a similar amount of sensitivity and cooperation from American Muslims, whose chief pastime appears to be complaining about violations of their civil liberties when the most minor selective attention of law enforcement and intelligence resources is directed their way. A far better strategy to avoid continued attention and future acts of terrorism would simply be to excise the cancer in their midst, so that a firm line is drawn between patriotic Muslims and the remainder. Instead, major Muslim civil rights organizations continue to make common cause with the prisoners at Guantanamo Bay, the fanatics of Hamas and Islamic Jihad, and with the anti-American ideology of Jihad and Sharia that goes against the consensus of all Americans against such an extreme and rigid role for the state.

Nemo Ignotus

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.

Would that be the London transit bombings of July 2005 that MI5 didn't stop?

Kevin McGilly

Surely I am not the only person troubled that a sitting circuit court judge would declare an executive branch action "a reasonable measure, whether or not it violates" the law. If the government of the United States is doing something that violates the law, that is a problem. And since we rely on judges as our only means -- short of insurrection -- to constrain the government to obey the laws, it is frightening for a judge to shrug off potentially unlawful government actions so lightly. Judge Posner is an enormusly influential jurist, and rightly so. He is an opinion leader among his peers on the federal bench. All the more reason for him to keep his strange counsel to himself on the legality of the NSA mass-wiretapping program.

Transatlantic lawyer

I see two very basic problems in Roach’s rebuttal of my comment. Firstly, it’s fallacious. Specifically, the converse fallacy of accident, when you argue from a special case (some terrorists are Muslims) to a general rule (all Muslims are suspect of terrorism). Secondly, every time you forward this kind of message, you provide an excuse to those who hate our great country, and expatriates like me have to suffer the consequences. And since Roach seems interested in knowing about the religious condition of those who have sent me several letters anticipating my death simply because I’m a US citizen working in their country, they're Roman Catholics. Fortunately, they haven’t (yet) consummated any of their threats, although my children have been beaten to a pulp in the street for the same reason.


I think it's actually refreshing to hear some common sense from a federal judge. Judge Posner is right. The main problem facing Islam in America comes from the rhetoric of extremist Imams. Though I like to think the Imams here have toned down their comments post 9/11. I have an alternative solution. Why don't we just shut down every Mosque in America? The overwhelming majority of American muslims are peaceful, law-abiding, and patriotic citizens. But they can pray at home. They don't need a mosque to make prayer. Don't you think that would go a long ways towards solving any future attacks that are carried-out from within?

To Roach, you play fast and loose with the facts. Of the incidents involving muslims you mentioned, how many involved AMERICAN muslims? Because right before you said they make up a small percentage of our country. You said American muslims are more concerned about their own civil rights violations. I think you meant American muslim civil rights organizations like CAIR. And then you made a bad analogy to Okla City. You said gun owners endured scrutiny after that. Why didn't young white males with crewcuts endure scrutiny? Or what about young white boys at public schools after the rash of school shootings which involved white young boys. Why? Because we know the overwhelming majority of young white males are good, law-abiding people. I think you would be surprised just how many muslim americans have the same values and aspirations that you have...if only you took the time to know any.


The efficacy of terrorism depends on the cooperation of hysterics like Mr. Posner, precisely because it can cause so much more damage to the institutions that define an open society than to actual human lives and infrastructure.

Frederick Hamilton


Let's see. 3000 human lives dead. Huge portion of NYC's infrastructure presently a large hole in the ground.

Damage to institutions that define open society: Freely elected federal/state/local legislatures, None Federal/State Courts, None Executive Branch, None Ability to travel freely throughout country and world, None Ability to talk freely privately or openly, None Elimination of Free elections, None.

It appears terrorism has cost the U.S. more in lives and infrastructure. Am I wrong?


Im very curious to know what hot bed of anti-americanism the much persecuted transatlantic lawyer resides in. Having spent all of last summer in China and traveling in Europe frequently, I have apparently had the good luck to be spared the anti-American wrath of the world's Roman Catholics. I suppose I should consider myself lucky.

It does surprise me that there is so much disagreement over the logical proposition that intelligence services ought to devote particular resources to monitoring mosques and muslims. While 9/11 may have been perpetrated by foreign muslims, it certainly was the work of some muslims within the much larger group of muslims acting on a virulent interpretation of the already extreme Wahhabi sect of Sunni Islam. Since we know that there is a group of Wahhabist Muslims trying to destroy our country and we also know that they are overwhelmingly (Mr. Walker-Lindh excepting) Arabic, it only seems logical to devote greater resources to searching, say, young Muslim Arab men with one way tickets from NY to LA than 67-year-old Irishmen flying back to Dublin for St. Patty's. I have to think that your average patriotic American-Arab Muslim would understand that we have very limited resources with which to combat terror and it is just logical to weed out those who are obviously not going to perpetrate it. If we are squeamish about focusing on a particular race in, say, airport searches, I think males in the most terror-inclined age-group (16-40?) at the very least should be searched with greater frequency. I think I can handle this sacrifice in my civil liberties.

It is a wonderful thing, and a testament to our nation's ability to assimilate many different types of people, that no American Muslims (with the exception of the few looneys who went to Afghanistan) have been mixed up in a domestic terror plot. However, I think they would understand that the web of terror may have some connections to their community at large and would understand, as patriotic Americans, that their phone calls being monitored more closely than those of my 63-year-old Aunt who lives in Montana is reasonable.

For goodness sakes, NSA wiretapping is hardly the thought police or Manzanar. Having a bunch of analysts in Baltimore going over Americans' phone calls and collecting data on which of us has contacts with known terrorists is hardly worthy of any of the hyperbolic charges that we are letting the terrorists win by doing "so much more damage to the institutions that define an open society than to actual human lives and infrastructure."

Transatlantic lawyer


I obviously am not going to give you any more details, but you make your own guess among those countries that have an Atlantic coast and an operating terrorist group included in the Department of State’s official list:



Transatlantic Lawyer, have you considered that folks willing to harass and discriminate against you for your US citizenship as a proxy responsibility for the acts of our government are, in fact, a**holes that we should not try to placate because they'll never be happy no matter what you or the US government does, short of selling them the keys to the kingdom. I presume from your cryptic comments and email address you're talking about Spain, which I've never visited, though I understand it is a nice country with lots of fun-loving decent people who would not do these things you speak of. But even if they or those in other countries would act this way--consider the ridiculous celebrations in the Middle East after the 9/11 attacks--it seems such people will always find something to be mad about. Consider the vitrioloic response to the Danish cartoons mocking Mohammad. Should the Danes change their ways too? As mom taught us all in elementary school, you can't please everybody so just be yourself and do what you think is right.

I do, however, find it kind of amusing that Europeans are often held up to be so enlightened, sophisticated, and more progressive than Americans, even though they restrict speech to a greater degree, have far fewer protections for those accused of crimes, are less original and individualistic on matters political, and, apparently, have many citizens who do not have the basic decency that the overwhelming majority of Americans have not to hold foreign visitors personally responsible for the actions of their governments.

Next time they give you a hard time, I suggest that you show a little pride. Pretend that you're too busy chewing gum or taking pictures or counting your American dollars or whatever else it is Europeans look down on us for, and tell them that you don't ave time to listen to their primitive ramblings. You'll feel better, and you'll be practicing what therapists call "setting boundaries."

Kimball Corson

How much good sense does it make to give up or seriously compromise on hard won civil liberties to simply gain, as Professor Posner has put it in another context, an Uncertain Shield, expecially when the compromises are made in secret and then not disclosed, all by men whose basic judgment we have come to mistrust? Too little, I suggest. Stong skepticism is the only defensable mind set here for responsible members of the public.

Kimball Corson

Too many of the defensive, shielding measures proposed so far which compromise on Constitutional rights do so in a specific manner that I think warrants more discussion. Personal information is obtained without a warrant or even responsible independent oversight – indeed in secret from us and then, in effect, we are asked to trust our government not to misuse that information. But not trusting our government is what the Bill of Rights is all about. Born of an adversarial process, with natural enemies within and outside of government, each Administration has axes to grind and is therefore ill qualified to be trusted to not misuse information obtained on us without a warrant or independent oversight. This government wants to reverse (or destroy) the process of first showing need or probable cause and then getting the information, with judicial oversight, to instead taking the information in secret and then when caught, promising not to misuse it while still rejecting credible oversight (Gonzales reporting to a powerless committee after 45 days on why the Administration will continue its violations). In short we are asked to trust our Government by giving up this cornerstone of our rights and to do so for the sake of an Uncertain Shield, blocked from our view. These issues need to be seriously addressed by responsible people of proven judgment and we need to be shown a program that weighs, protects and balances all interests and one that is to be administered, with oversight, by just such people. As matters stand, we are well off the mark here and now.

Kimball Corson

Roach writes above:

"It says nothing about the Muslim community as such to recognize that a minority of that minority represents the chief national security threat we face: self-described Muslim terrorists. It is notable that such a large proportion of potential and actual terrorist incidents--particularly high profile incidents--in the United States in recent years involved Muslims, particularly when Muslims make up such a small percentage of our population."

I respond: Accepting this as true, if constitutional rights need to be compromised why not have it be of this "suspect class," to recoin the phrase, instead of all of the rest of us. Intensive profiling, surveillance, monitoring and perhaps registration and ID cards of and for this group might make really good sense. Also, it places any loss of civil rights much more narrowly right where that cost should lie, especially given the strong predisposition of Muslims not to rat on their brethren and to given them shelter and aid, even while disagreeing with their politics and actions. Also, too few Muslims have spoken out against Islamic radicalism and the actions of the few of them who are terrorists. Why should all of us suffer the compromise of our civil rights if this alternative would work as well or better and guard the rights of the vast majority. We are not and should not all be treated a fungible for present purposes. This is the next major step in the basic direction Posner proposes, but would he go so far?


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