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September 21, 2006


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Kimball Corson

Prof Posner sounds like a very bright George W. Bush. Pragmatism emasculates every principle in the face of a perceived threat; expediency wins without debate. Law doesn’t matter. Ditto the Constitution. It’s get your guns and get them fast. There is no real effort to preserve, protect or balance Constitutional principles. We are to just immediately step past them in a spirit of complete expediency. Full emasculation, almost without thought or any balancing, is the order of the day when we are terrorized. This errant pragmatism has its highest moment when we are most terrorized, regardless of the actual threat, which is unknowable to us, just as terrorists wish it to be. They only have to taken action frequently enough to keep us spooked and then we go about the business delightful to them of emasculating and destroying our own principles and institutions, while they watch with glee, declaring the downfall of our civilization and with some truth. Scared to death, we are easily so manipulated. Never have so few resources in others’ hands done so much damage to so many of our own by our own hand. The key is that we act terrorized and fail to understand the saying that the coward dies a thousand times before true death; the valiant die but once.

Geof gives up too much and Dick takes too much. One balances too slowly and the other, not at all. One is cautious and protective of what is dear to us and the other thinks only of our defensive effectiveness. One is seriously terrorized and the other, only moderately so. One takes a historical view and will be judged better by history, the other is ahistorical and will later seem too rash. These two should be locked in a room to decide these matters for our Government, with full access to all relevant technical and strategical information. Geof should forget he was ever a student of Dick’s and not be so deferential. And they should fight it out in the trenches with an imperative to reach an agreed upon set of decisions between them on all these matters. When the compromises emerge, most American could and should live with them, knowing they will be better considered than anything Congress might come up with.


I am not sure when I have last read anything as frightening as Judge Posner’s suggestion that the FBI could legally follow every Muslim. While he qualified his statement by adding “suspected of terrorist sympathies,” the qualification is scant comfort when you factor in profiling. If we can follow every Muslim, surely we can make each of them wear a distinctive badge to allow us to do so efficiently. My yellow star would not be far behind.

Kimball Corson

The problem is that Muslim terrorists hide among us and are disguised as us and also behind women and children so that, being principled, our retaliations are compromised, just as they intend. Terrorists know us well and pit us against ourselves. The issue always is how to we respond and remain principled. Prof Stone understands this and wishes to remain as principled as he can, in light of his perception of the threat. Prof Posner, well terrorized and with a knife in his teeth and a nod to principles, is determined to be effective, no matter what the compromise. They are the articulate near endpoints.


Mr. Cook--

I believe that Mr. Posner accurately states current law, as long as the surveillance was not done in a manner calculated to draw public notice of the fact that the person being surveilled was Muslim. At least I am unaware of any case that says it could not be done. However, it is obvious to me from the context that his statement is not meant to be taken as a policy prescription for the FBI, but merely to illustrate what could legally be done within the context of current law.


Oops--last comment should have said Judge Posner.


Mr. Corson, you raise an important point regarding pragmatism versus principle. However, I believe that I can reconcile the two for you. Mr. Posner's pragmatism has a short time horizon, while Mr. Stone's principles are really just pragmatism with a long time horizon.

Let's take any given component of the Bill of Rights -- say, the prohibition against intrusive searches without a warrant. Mr. Posner appears to believe that this prohibition should be compromised in the interests of pragmatism. In the short term, he may well be correct that the benefits outweigh the costs. However, I think that we can agree that, in the long term, the costs would steadily rise. If we broach the basic principle, then we open the door to all manner of abuses that would hide in the gray areas created by our anfractuous exceptions. Observe how easily Mr. Bush's Administration has pushed the law on such matters as torture, renditions, secret prisons, retaliation against whistleblowers, and so forth. A future Administration would surely extend such behavior, and over the course of decades the permanent loss to the American people would exceed the benefits of increased security against a transitory threat.

The Bill of Rights is not unpragmatic. It represents a longer-term, clearer form of hard-headed pragmatism than that which Mr. Posner offers us. Mr. Posner's pragmatism reflects the panic of the moment, not the wisdom of history. Yes, we need pragmatism -- REAL pragmatism based on a deep understanding of history and human behavior, not a shallow pragmatism arising from the emotions of the moment.

Moreover, we must be pragmatic in our appreciation of how is actually used. We must never forget that the Executive branch has enormous power and can readily abuse that power. Our only safeguard is the establishment of clear, unambiguous constraints on that power. Mr. Posner's pragmatism would demolish strong, clear constraints and replace them with soggy, easily breached guidelines. The very essence of law lies in its ability to draw a clear line. Clear lines are drawn based on well-understood principles, not temporary schemes based on such transitory matters as race, ethnicity, or religious belief.

Lastly, I have some information to offer on the possibility that Mr. Posner mentions regarding the ability of terrorists to securely encrypt their communications. This is already an established fact. There exists a free Internet service called Skype which permits people to have voice conversations anywhere in the world. These conversations are encrypted using a very robust technology that cannot be cracked by the government. At any given moment, there are several million such conversations in progress -- so many that the use of Skype is on no way indicative of suspicious intent. Skype is based in Estonia, partly because the US government has attempted to restrict the use of such robust encryption technology in the USA. It has completely failed in these efforts. The fact is that anybody, anywhere in the world with an internet connection, can now communicate in complete security and without raising any suspicions by doing so. That battle is already lost; the wall has been breached. All government interception of communications is therefore a waste of time. Any serious terrorist can now easily evade all detection of his communications.


Corson says: “The problem is that Muslim terrorists hide among us and are disguised as us “
Murders, rapists, child abusers and other criminals also hide among us and are disguised as us. They are given the protection of the constitution. Yet you would deny this protection to Muslims.
Statistically, thousands more Americans have been injured and killed by the murders, rapists, child abusers and other criminals in the past five years than by Muslim terrorists.
Which is a greater threat to you and your family?


David, your apology for denying Mr. Posner his honorific requires me to explain my refusal to use honorifics, which Mr. Stone and Mr. Posner might undertandably take offense at. I have adopted the practice used in the newspaper The Economist, which uses no honorifics. My reason for doing so is that it is manifestly ridiculous to use some of the honorifics with which some tyrants festoon themselves. As I recall, Mr. Idi Amin of Uganda granted himself a particularly elaborate honorific, the recitation of which would surely provoke laughter. If we are to be consistent, we would not use "President Bush" and "Saddam" -- it would be "President Hussein". It is impossible to use honorifics consistently without occasionally being absurd, yet drawing a middle line invariably leads to arbitrary distinctions. I therefore draw the line at "no honorifics whatever". I hope that Messrs. Posner and Stone take no offense.

Kimball Corson

Gary raises a good responsive point - both criminals and terrorists hide among us. Indeed, they are all criminals so one implication is they all have Sixth Amendment rights. Erasmussimo raises an intersting time-frame based analysis which makes some sense. The problems I see with it are how long is the war on terror to continue and rights to be compromised and if the "war" winds down, what mechanism is there to assure that we find our way back in good order.

Kimball Corson

If truly secure entryption is readily available to us, as Erasmussimo explains, do not we give up our own rights to privacy if we elect not to use it? Now, I am sounding a bit like Judge Posner with his incremental forfiture anaysis.

Kimball Corson

encryption, that is.


for some years now, I have read much of J posner's popular writing (books and blogs) and have been a fan of his pragmatic approach. but two things have bothered me from time to time.

one is the view that since voters play a very limited and insubstantial role in our democracy, viz, they only select representatives who do the specialized task of governing, election results are of minor importance as it's only a matter of choosing one governing "professional" versus another. in an idealized 18th C where the representatives were envisioned as being those "possess[ing] the most attractive merit and the most diffusive and established characters" and "whose wisdom ... and ... patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations", this might have been a reasonable attitude. in an era in which political parties use the same quality-independent mass media marketing techniques as laundry soap vendors to sell their products to a correspondingly undiscriminating electorate, not so much.

second has been an apparent attitude something like "the current cast of characters doesn't make much difference, the system is robust and it will all work out in the end". I don't recall which writing contained it (and I may even be wrong - my reading retention, never very good, gets worse as the decades pass), but I believe J posner has said that he thought it made no difference which "candidate" (to me, synonymous with "party") won in 2000 because the two parties were, for all practical purposes, indistinguishable.

I submit that if in 2000 (and certainly by 2004) one didn't recognize that the R party had become disturbingly irresponsible and that GWB was singularly unqualified to be president, their political judgment should be considered somewhat suspect. and I think we are seeing clear evidence - in the form of almost daily reports of executive abuses not only unchecked but facilitated by a congress that puts party above country - that the system is much less robust than many of us assumed.

for a debate to be fruitful, it helps if the participants start with common premises. I therefore predict that this debate will not result in meaningful convergence because it appears that this condition is not met. one participant apparently starts with the premises that the government is relatively immune to corruption and that the governors are reasonably capable persons of adequate integrity with sufficiently honorable intentions; based on postings in this blog, it seems to me that the other doesn't.




I kind of like getting letters that have "Esq" after my name, don't you?



I recognize that Judge Posner was not saying that following every Muslim was current policy. He was however, and you seem to agree, suggesting that such a policy would be legal and using that conclusion as a stepping stone to support his other conclusions. Without getting into specific citations, do you have any doubt that a policy to treat members of any religious differently merely because of their religion would be subject to more than a rational basis test? I think at least intermediate scrutiny would be applied and I'd like to think Judge Posner presented with an actual case would recognize the chilling effect on the free exercise of religion and change his mind.


I´m sorry...

Judge Posner is wrong to even insinuate that following Muslims would in any way be conscionable. I feel for the Muslim/Middle Easterners in the U.S. and the crap that they have to put up with sometimes. The vast, vast majority of Muslims, not just in the U.S., but in the entire world, are NOT terrorists. Does no one remember that terrorism isn´t only done by Muslims? It´s been 5 years since 9-11. Does no one remember that the Oklahoma City Bombings happened five years before that? That Waco was only a few years before that? Here in Spain, ETA is starting to get violent again. There are terrorists everywhere. Furthermore, it has always been that way.

It is okay to find terrorists. But it is not okay to specifically target law-abiding Muslims, and especially not to follow them in the streets. That the comment can even be made is quite distressing.

Second, Eras brings up a good point with his timeline analysis. However, looking back, we´ve nearly always had some sort of short-term crisis that would justify the taking away of rights. Before terrorism, it was the "war on drugs" which, somehow, gave the Supreme Court the right to change substantially the Fourth Amendment analysis in this country. Before that, it was Communism (First Amendment rights), which was just an extension of the previous socialist stigma that brought the SCOTUS to impose an economic theory on the constitution. There will always be something. I hope people like Kimball, Eras, and Professor Stone will always be around to bring some sort of responsibility and rationality into the equation.

Kimball Corson

Posner cannot be properly accorded his honoriffics in these comments. There is not enough space and attentions would wander.

Kimball Corson

But Constitutionality partially aside, following Muslims does make more sense than following Swedes. Also, Muslims don't really speak up and out when their brethern commit terrorist offenses, implying at least sympathy, if not a certain form of complicity. Islamic religous practice requires protection of offending brethern even where those protecting disagree with the actions taken of those they protect. This itself is an implicit conspiracy of sorts. Muslims are definitely not in the practice of turning their offending brothers in. Why shouldn't they be required to do so as a matter of express and particular law? Terrorists deliberately hide among them and us and behind us all, as non-offending Muslims well know. And we certainly are not being terrorized by the Japanese. These are good predicate considerations on the questions of whether profiling and following are appropriate responses in our situation.


Mr. Corson points out that following Muslims makes more sense than following Swedes. I agree. Indeed, executing random Muslims makes more sense than executing random Swedes. In relative terms, the concept is sound. In absolute terms, it is not.

Mr. Corson also blurs two very distinct behaviors: denunciation of terrorism and reporting criminal conspiracies. In declaring that Muslims "don't really speak up and out when their brethren commit terrorist offenses", he is simply wrong. I refer the reader to


a lengthy condemnation of statements from Islamic leaders condemning terrorism, the 9/11 attacks, and al-Qaeda. At the end is a list of URLs providing further condemnations of terroris from Islamic leaders and organizations. I can certainly understand Mr. Corson's misinformation on this point; the American news media are woefully deficient in their coverage of the Islamic world, and heavily biased as well. But the fact remains that his statement on this matter is flat, dead wrong.

On the second point, regarding Muslims reporting criminal conspiracies, I remind all that the security services of Western countries have had many successes in detecting such conspiracies. Does anybody believe that these successes could be obtained without the active cooperation of members of the Islamic communities? We don't really know, of course, what trail of evidence leads to the conspirators, as such evidence must remain confidential, but intelligence operatives are insistent that human intelligence, talking to people, is far and away the most effective method, much more important than technological intelligence. Mr. Corson's assumption that Muslims are not cooperating with security agencies is without foundation.

Kimball Corson

We all speak in generalizations because life is short. While Eras makes a credible anecdotal case against my arguments, I do not believe it is a prevailing one. If the Muslim community wanted to stop terrorism, it largely could. The truth is mothers are often proud of their martyred sons and daughters (especially those receiving compensation). Muslims almost never rat on other Muslims in wars and squabbles with infidels, especially to the infidels and this is the core problem, which Eras does not address. Because of this code of support/silence and partly also out of fear, Muslims largely keep what they know to themselves, to our great injury. I agree that the media does not treat the occasional Muslim cooperation well or fairly, but I believe that practice is the exception and not the rule. That we do not make the lives of American Muslim any easier and do discriminate against them only compounds these already serious problems. But there is another side to this as well. If the terrorists that do us damage and injury are Muslims and not of other religions, a rational first step to catching terrorists is to focus on Muslims and not those of others religions. Further, if the offending Muslims are radicals or fundamentalists, then narrowing our focus to radical or fundamentalist Muslims likewise makes sense. We cannot be expected, with finite resources, to frisk, detain, inspect, investigate, stop and follow everyone equally in pursuing the Muslim radical terrorists amongst us. That would be nonsense. It would be nonsense as well not to do any of those activities. The price of protecting your religious brethren against the infidels with silence, even if you do not agree with their actions, should be some relative loss of your liberty, for the code of silence is indeed a tacit form of conspiracy. Those who do inform we infidels against their brethren should be protected and their rights fully preserved. While I might sound a bit like Posner on these points, American lives should not be lost to a religious code of silence if we can prevent that from happening.


Mr. Corson, your argument rests on assumptions devoid of foundation. You declare that "Muslims almost never rat on other Muslims in wars and squabbles with infidels, especially to the infidels and this is the core problem, which Eras does not address." Do you have any evidence to substantiate this claim? While I agree that any group of people often make common cause when threatened by outsiders, the specific issue at hand concerns the propensity of Muslims in America to reveal information about possible terrorist activities. You have offered us no data to substantiate your claim that they are hiding terrorists in their midst. Of course, I have no data that they AREN'T hiding terrorists in their midst, but the burden of proof here is upon you because you are the one proposing a departure from the norm.

If we want to impose "some relative loss of liberty" upon Muslims, as you propose, we should first ascertain whether in fact they are "protecting [their] religious brethren against the infidels with silence", as you accuse them of doing. Indeed, if we're going to take away some of their liberties, aren't we supposed to have a trial first?


I decided to put my time where my mouth was, and check up a few facts about American Muslims. Here's one poll, taken just after the 9/11 attacks:


It doesn't directly address our issue here, but there is one statistic that indirectly bears on it. 84% of American Islamic respondents support stronger anti-terrorism laws. They also come out looking pretty conservative -- the idea of this group of people harboring terrorists seems ludicrous when you digest all the numbers.

There's an illuminating snapshot here:


but it doesn't really prove anything. I was unable to find any straightforward poll asking American Muslims, "If you knew of another Muslim who was plotting an act of terrorism, would you report him to the authorities?" On the other hand, such a question seems ludicrous to ask.


First they came for the Socialists, and I didn’t speak up, because I wasn’t a Socialist.
Then they came for the Trade Unionists, and I didn’t speak up, because I wasn’t a Trade Unionist.
Then they came for the Jews, and I didn’t speak up, because I wasn't a Jew.
Then they came for me, and there was no one left to speak up for me.

Kimball Corson

Interesting and very troublesome set of comments here, including my own. Not a good situation, for sure.

Seth Edenbaum

Posner does not understand the philosophical justification for democracy, and neither does anyone who takes him seriously.
Democracy is never the most practical means of government.
Freedom of inquiry is a dangerous thing, but I like it.

Posner is an efficiency expert posing as a philosopher. Only this country could produce such a pathetic argument and such a pathetic excuse for human being.


Mr. Edenbaum, I object to the denigratory content of your post. Mr. Posner is a distinguished jurist with a magnificent reputation. I disagree with him on many points, but I do not indulge myself the simple-minded vanity of thinking him in any wise intellectually deficient. Indeed, this man's expertise on legal matters far outstrips that of you and me many, many times over. I permit myself enough vanity to disagree with him, despite my vast ignorance, but I do not for an instant think that my own insectoid knowledge justifies my beliefs. I think that a reasonable man can disagree with Mr. Posner while still holding in highest esteem his proven erudition.

There are thousands of blogs where one can vent his spleen at those of differing beliefs. Please, let's respect the intellectual integrity of this special place.

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