8 posts categorized "H2H: Posner v. Stone"

June 23, 2006

H2H: The End of the Debate (For Now)

With final posts yesterday, our first Head to Head: Stone v. Posner came to a close. Please let us know if you have comments on the format or suggestions for future debate topics or participants.

June 22, 2006

H2H: What Side of the Civil Liberties-National Security Balance Should the Judicial Thumb Be On?

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.)

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H2H: Open Spaces and the Role of Judges in Wartime

In my third and final post in our exchange, Dick, I'd like to shift over to the subject of judges. At a talk you gave recently at Boston University at a symposium we both attended, you reflected on what you termed “open spaces,” those seams in the law where neither text nor precedent commands a result. Your point (if I recall correctly) was that it is in these spaces where real "judging" takes place. In these spaces it is reasonably possible for conscientious and highly responsible judges to reach different outcomes, and in these spaces judges inevitably bring to bear their moral values, institutional preferences, personal ideologies, and emotional dispositions. In these spaces it matters a lot who the judge is.

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June 21, 2006

H2H: Domestic Intelligence and Civil Liberties

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.

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June 20, 2006

H2H: Domestic Intelligence Agencies, the Internet, and NSA Surveillance

It's true, Dick,  that I have no objection in principle to the creation of a professional domestic intelligence agency. For me, the central issue is whether, to what extent, and in what circumstances the United States should engage in domestic intelligence gathering. As I understand it, the distinction between an organization like the FBI and a domestic intelligence agency is that the FBI is dedicated primarily to law enforcement whereas a domestic intelligence agency would be dedicated to gathering information in order to prevent terrorist attacks. As you make clear in Uncertain Shield, because the FBI is geared to law enforcement, it has never developed the skills necessary for effective domestic intelligence and its incentive structures is deeply rooted in solving rather than preventing criminal acts. To the extent an effective program of domestic intelligence can enhance our ability to prevent terrorist attacks without undermining civil liberties, I'm persuaded that a professional agency dedicated to that end has advantages over the FBI.

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June 18, 2006

H2H: Yes, Civil Libertarians Are Too Willing to Sacrifice Innocent Lives—Richard A. Posner

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.

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June 16, 2006

H2H: Are Civil Libertarians Too Willing to Sacrifice Innocent Human Life?

I’d like to begin, Dick, with your most recent book, Uncertain Shield: The U.S. Intelligence System in the Throes of Reform. (By the way, for those readers who haven’t read Uncertain Shield, it is a terrific analysis of the successes and failures of intelligence reform since 9/11). In this opening post, I’d like to focus on an observation you make in Uncertain Shield, somewhat peripheral to the central thesis of the book, but of great interest to me. (I suppose that’s the advantage of going first.)

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June 15, 2006

Debate: Stone vs. Posner

Next week, we launch yet another new feature of the blog: a debate forum where our bloggers will have the chance to exchange ideas in a series of related posts over a several day period. First up are colleagues Geof Stone and Richard Posner, on the topic of "Civil Liberties and the War Against Terrorism."

This debate will begin on Monday with a post from Geof, and should run the whole week. Readers can follow the posts here, or can access the full set of posts via the link in the left-hand column.