Terrorism and Judges

Richard Posner interviewed on the Glenn and Helen show. Posner was one of the guys I had to read in my ethics classes during college, so I always pay extra close attention to his opinion because I associate him with expertise and knowledge. He's just written a book about terrorism and the constitution and is one of the most widely recognized legal minds in the country.

He basic premise is that the Constiution is a flexible document - always has been - and should not be interpreted as a suicide pact, that is to say, we cannot be handicapped with civil liberty concerns that would jeopardize our well being. The familiar liberal suggestion, echoed by Denzel Washington in "The Seige," and I'm paraphrasing, "if we budge just a little bit on civil liberties, all is for nought, and the terrorists have won." Well, it just ain't so.

He believes the terrorism issue is tough to break apart because we have two insufficient narratives to describe the issue - the total war narrative and the terrorists as criminals narrative. And actually what we are facing is somewhere in between. The WWII analogy is insufficient because the enemy was easy to identify. But with terrorism, the enemy can be one of our own, and is in general, difficult to identify. This model then basically turns the entire world, including the US, into a battlefield and hence, battlefield rules apply. But this is obviously the wrong approach to handling the terrorism issue.

The crime model, he argues, is worse because we are living in a era of proliferation and the threat of uber powerful weapons being used against us. Our criminal justice system is set up not to end crime, but just to control it...hence all of our criminal procedures. For instance, we wait for crime to occur and then we try to capture them as a deterrent effect for others.

Obviously, in an era of terrorism we can't sit around an accept terrorism as a cost of doing business, just adding the tally to murders. For one, terrorists being caught or killed in successful attacks do not act as a deterrent to other terrorists, hence, the entire system doesn't work. Secondly, in an era of weapons proliferation, any attack is too catastrophic to consider.

He makes another interesting argument that prevention of terrorism is the best safeguard against civil liberties because any additional attack will lead to greater civil liberties being abused. It is ironic, therefore, that liberals have an instinct to underestimate the terrorist threat because of it's perceived damage to civil liberties, but what they may in fact be doing, by underestimating the threat - putting civil liberties in more danger.

He also talks about how judges in America fall into a Generalist tradition, in that judges do not have specific expertise on criminal subject matter. For instance, in France, they have specific judges to handle terrorism cases. The problem Posner identifies is that American judges are rarely experts in terrorism, but they tend to be experts in civil liberties. Therefore, in making decisions, judges tend to error on the side of civil liberties and do not adequately understand the unique challenge of terrorism.

It look to me like a book worth reading.