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Debate Club

What's Wrong With the Patriot Act?

Geoffrey Stone and Richard Posner debate.

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Rushed through Congress in the weeks after September 11, 2001, the Patriot Act has been a persistent source of controversy. Despite criticism in particular from advocates for civil liberties, the House recently voted to reauthorize the act before sunset provisions end some sections of the law at the close of the year. The Senate has approved a slightly revised version that requires investigators to provide proof that wiretaps and searches of library records—two of the act's most controversial aspects—are directly connected to terrorism.

With President Bush threatening to veto the act if any of its current provisions are cut and with the bill in a conference committee of the House and Senate, the stage may be set for a confrontation between the branches. What should Congress do with the Patriot Act?

Geoffrey R. Stone is Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago and author of Perilous Times: Free Speech in Wartime. Richard A. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School.

Stone: 10/3/05, 09:17 AM
In October 2001, a little more than a month after 9/11, Congress enacted a complex piece of emergency legislation with more than 150 sections designed to grant new powers to federal officials to enable them to protect the security of the United States.

The act was hastily drafted by the Department of Justice and presented to Congress and the nation by Attorney General John Ashcroft as vital to the nation's safety. The administration voiced barely veiled threats that anyone who questioned the legislation would be deemed unpatriotic and accused of aiding the terrorists. Even the name of the act was intended to send that intimidating message. Not surprisingly, the act sailed through Congress with no hearings, no debate, no deliberation, and almost no opposition.

As I'm sure you'd agree, Dick, in this emotionally-charged atmosphere, it was inevitable that the act would to some extent unduly sacrifice civil liberties. Aware of this danger, Congress included a sunset provision for most of the controversial sections of the act, ensuring that they would automatically expire on December 31, 2005, unless Congress affirmatively reenacted them. The sunset provision was added in the hope that it would protect us from repeating the mistakes of the past, for throughout our history we have had a consistent pattern of overreacting to the fears and anxieties of wartime and excessively restricting civil liberties in the name of national security.

Such overreactions, illustrated by the Sedition Act of 1798, the prosecution of some two thousand dissenters for opposing World War I, and the internment of 120,000 individuals of Japanese descent during World War II, are perfectly predictable responses to war fever. War naturally generates a mood of fear and suspicion. Spies, saboteurs, and terrorists are seen lurking around every corner. Any unguarded act or word may be deemed suspect—even disloyal.

Against this background, and in light of the mood surrounding the passage of the PATRIOT Act only a month after 9/11, it was predictable that in at least some of its particulars the act would reach too far. Although the PATRIOT Act is a far cry from the worst excesses of our past, and although most of its provisions are defensible, it is implausible to believe that any law enacted in such circumstances would be perfect.

Yet here we are, four years later, as the sunset provision is about to kick-in, and President Bush insists that the act must be reenacted lock, stock, and barrel. According to the president, not a single provision, not a single clause, not a single word of the PATRIOT ACT went too far in its limitation of civil liberties. The Act was perfect (except, of course, it didn't go far enough!)

Against this claim of perfection, Dick, let's consider section 215 of the act, which authorizes Executive Branch officials to demand records from businesses and other institutions and organizations without any showing of reasonable grounds to believe that terrorist activity is afoot. This includes not only business records, but personal medical records, bank records, educational records, and library and bookstore records.

At first blush, of course, one might think this would violate the Fourth Amendment, which prohibits "unreasonable searches and seizures" and ordinarily requires a showing of probable cause. But the Supreme Court has held that the Fourth Amendment applies only when the government intrudes upon an individual's "reasonable expectations of privacy." For example, suppose X walks down the street and a police officer follows him to observe his behavior. Is this a "search"? The court has held that it is not, because X has no "reasonable expectation of privacy" when he voluntarily exposes things to the public. In this example, that conclusion makes sense.

But suppose now that the government wants to seize and examine X's financial records from his bank. Surely, X has a "reasonable expectation of privacy" in his personal finances. Nope. Because X voluntarily disclosed his financial dealings to complete strangers—the bank's employees—he has no "reasonable expectation of privacy" in his records, and the government can scrutinize them without any showing that he has done anything wrong.

It gets even worse, Dick. When library and bookstore records are involved, X would seem to have not only a privacy interest, but also a First Amendment interest in shielding his choice of reading materials from the eyes of prying government officials. Surely, government officials cannot track what books X reads without any showing of justification. Just think of the implications. If FBI agents can create a file on X merely because he buys a book on, say, the history of terrorism, and this file may turn up sometime in the future when X applies for a government job, X will think twice before reading such a book. But under section 215 of the PATRIOT Act, this is precisely what federal officials are authorized to do.

Perhaps in the immediate aftermath of 9/11 it seemed necessary to grant this power to federal officials. Terrorists do use libraries and buy books. But now that we've had a chance to reflect on this, we should restrict section 215 at least insofar as it applies to libraries and bookstores. This doesn't mean government cannot obtain such records. It means only that, in order to do so, it must have reasonable grounds to believe that the target is involved in some sort of terrorist ring. With this in mind, the House of Representatives voted overwhelmingly in June to limit section 215 in its application to libraries and bookstores. Even many Republicans supported this legislation. But President Bush has announced that he will veto any effort to limit any of the provisions of the PATRIOT Act, and this one in particular.

Whether the application of section 215 to libraries and bookstores violates the Constitution is not the issue. Reasonable minds can differ on this. But the Constitution provides only the minimum protection of individual liberty in our society. For the most part, we rely on common sense, a commitment to traditional American values, and a decent respect for the fundamental freedoms of the American people to protect our liberty. We deserve better than a thoughtless, knee-jerk insistence that whatever was enacted in the throes of 9/11 must be forever written into law. Don't you agree?

Posner: 10/3/05, 12:23 PM
Well, no law is "perfect," but, on your own account, Geof, the PATRIOT Act must come pretty close, because although the act has more than 150 sections, you seem to be worried only about one. And while you say the act was passed in an "emotionally-charged atmosphere" with "no deliberation," you congratulate Congress on having included in the Act a sunset provision, presumably a product of deliberation.

Whether section 215 of the act is justifiable depends not only, as you imply, on the consequences for civil liberties but also on the magnitude of the terrorist threat and on the contribution that the provision is likely to make to reducing that threat. I do not find in your posting or in your other writings an effort to assess the current terrorist threat and evaluate countermeasures. (I would be very interested in your assessment.) Civil liberties represent an effort to strike a balance between liberty and safety, and so vary in scope as the balance shifts. The balance at any given moment cannot be struck unless due weight is given to both values at stake; to ignore one of the competing values is the equivalent of a bird's trying to fly with only wing. I am sure that at some level you agree that civil liberties are ultimately a matter of balancing liberty and safety—you agree for example that a measure of censorship may be justified in wartime that would not be justified in peacetime. Do you consider the trial and execution of the German saboteurs who landed by submarine on Long Island in 1942 an overreaction to war fears? What makes you think that the current terrorist threat is not great enough to justify a reexamination of the expansive scope of civil liberties that is a legacy of the extraordinary judicial activism of the years in which Earl Warren was Chief Justice of the United States?

At least I thought you were a balancer until I read your New York Times op-ed piece of August 15. You were writing about Prime Minister Tony Blair's proposal, in response to the July 7, 2005, bombings in London (I quote your paraphrase of the proposal), "to carry out a series of new antiterrorism measures, including deporting foreign nationals who justify the use of 'violence to further a person's beliefs'; authorizing the denaturalization of British citizens who engage in 'extremism'; and legislating a new 'offense of condoning or glorifying terrorism.'" You declared your opposition to Blair's proposal without addressing the efficacy of such measures and whether they might have prevented the bombings—in other words, without considering the benefits to public safety that such measures might create. You said that "the citizens of a democracy must be free to hear even the most intemperate and inflammatory criticism of their nation's policies and practices, unless it expressly calls for immediate violent action and creates a clear danger that such action will occur imminently." With the qualifications that I have italicized, you emptied the "unless" clause of significance. You were telling Britain that it must not try to prevent radical imams from preaching the glories of suicide attacks on London commuters no matter how clear it is that such preaching results in violence, provided the imams do not "expressly call for immediate violent action"—provided in other words that they say "bomb the subways and you'll go straight to heaven" but don't specify a date for the bombing. Is it unfair to suggest, on the basis of what you wrote, that you are willing to pay a considerable price in innocent human life in order to vindicate an absolutist conception of civil liberties? How high a price, may I ask?

I do not think a selective account of the history of restrictions of liberty can be a substitute for evaluating the current threat. We live in the present and the future, not in history. The present is host to a threat of terrorist attacks employing weapons of mass destruction, and that threat will increase as those weapons become increasingly cheap, lethal, and available. The Sedition Act of 1798 has little bearing on modern terrorism. Nor is "war fever" an apt ground for criticizing President Lincoln's suspension of habeas corpus during the Civil War, a historical episode that you do not mention and that to my mind constitutes an enormously important exception to "a consistent pattern of overreacting to the fears and anxieties of wartime."

Have you ever encountered a protection of civil liberties that you thought went too far? If not, I fear the gap between us must remain very wide.

Section 215 may go too far in the opposite direction, in allowing government to demand records without a showing that they are likely to contain information that might be useful to a national security investigation. But your suggestion that the government "must have reasonable grounds to believe that the target is involved in some sort of terrorist ring" does not go far enough, and indeed misunderstands the needs of intelligence. By "target" I assume you mean the individual or group mentioned in the records, rather than the records custodian. Even so, information about an individual or group that is not involved in a terrorist ring may be highly germane to an investigation of the ring, or, what may be as important, to an investigation aimed at discovering the existence of such rings. The information might concern an imam who, though not himself involved in terrorism, is preaching the glories of jihad. It might concern family members of a terrorist who have or may have information about his whereabouts. It might consist of sales invoices of materials that can be used to create weapons of mass destruction, or of books and articles that express admiration for suicide bombers. Successful intelligence requires the ability to construct a pattern from a mass of scattered data, many of them innocent (in the criminal-law sense) in themselves and obtained from records, intercepts, and other sources of information that do not directly concern the target of an investigation. To repeat, the target may be unknown if the government is trying to discover whether there are terrorist rings in this country.

So I think we need something like section 215—something more like it than you allow. I do not think the price in liberty would be high. Most records custodians will voluntarily hand over nonprivileged records to the government when told the government thinks that the records may contain information bearing on protection of the national security. Those custodians who refuse to disclose the records may by refusing create enough suspicion to enable the government to obtain a subpoena even under your narrower version of the section!

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Stone: 10/4/05, 09:09 AM
You ask whether I've ever seen a restriction of civil liberties I would approve. There is a semantic problem in this query. Of course there are restrictions of civil liberties I would approve. I would permit a civil action for defamation based on a knowingly false statement. I would permit an individual to be punished for expressly advocating unlawful conduct if the conduct is likely to occur imminently. I would permit the FBI to subpoena library records on a showing of reasonable suspicion that the target of the investigation may be involved in terrorist activities. I would permit the police to frisk an individual for weapons in the course of a lawful stop if there are reasonable grounds to believe the individual is armed and dangerous. Now, you may say, Dick, that these examples don't count because they're all allowed under current law. But that doesn't mean they're not restrictions of civil liberties.

I suppose you really mean to ask whether I would approve of any restrictions of civil liberties that are greater than the ones allowed under current law. Sure I would. I would approve greater restrictions of the civil liberty of white males to invalidate affirmative action programs. I would approve greater restrictions of the civil liberty of corporations to swamp society with commercial advertising. I would approve greater restrictions of the civil liberty of religious organizations to demand government funding under the First Amendment. These count, don't they?

You say you thought I was a "balancer" until you read my op-ed opposing Tony Blair's proposed restrictions of political and religious expression. I am a balancer, Dick. But I try to balance with an understanding of how government institutions actually operate, rather than with a one-dimensional sense of "costs" vs. "benefits." The relevance of history is a good example. I think history is important because we can learn from it how and why government behaves as it does, and how and why it is likely to behave in the present.

Examples like the Sedition Act of 1798 and the internment of 120,000 individuals of Japanese descent are important because they give us reason to believe that in time of crisis government will tend to exaggerate the dangers and seize the opportunity presented by a crisis to manipulate the law for partisan ends. These examples, and others, justify some skepticism about government claims that it needs to restrict civil liberties to ensure our safety. Too often, government has simply been wrong or, worse, dishonest.

I'm not prepared to ignore patterns of conduct in own history and pretend each time a crisis arises that we can trust the executive and legislative branches to act wisely and fairly. What was it President Bush said? "Fool me once, shame on...shame on you... and fool me... we can't get fooled again." The difference between you and me, or at least one of the differences, is that I take history into account in trying to strike the right balance. I don't see how else one can rationally weight the "costs" and "benefits."

You also wonder whether I would take the magnitude of the danger into account in striking the right balance between liberty and freedom. Should we be willing to suffer a greater restriction of civil liberties if there is a 20% chance of littering than a 20% chance of a biological attack that will kill 100,000 people? Of course we should take this into account. But we shouldn't leap to the conclusion that because the danger is very grave that the proper way to address it is by restricting our freedoms.

This was precisely what the Supreme Court did in the Dennis case, in which it upheld the convictions of the leaders of the Communist Party of the United States on the claim that they posed a "danger" of violent overthrow of the government. The court recklessly bought into the argument that because the seriousness of the danger (violent overthrow) was very grave, the government could punish the speech even though the danger was neither likely nor imminent. As Justice Douglas rightly said at the time, the justices in the majority chose to "run with the wolves."

The problem is that by inflating the gravity of the danger one can "justify" almost anything. In my judgment, we need a much more skeptical approach to these claims. Specifically, and at a minimum, the government should have to demonstrate that it is sufficiently worried about the danger that it has taken vigorous action to prevent it in ways other than by restricting civil liberties. Restricting civil liberties should be a last not a first resort. So, part of what I would demand from the government, Dick, is proof that it has taken all other reasonable measures to forestall the danger before it starts monkeying with free speech.

Posner: 10/4/05, 12:09 PM
Geof, I don't think your second post is fully responsive to the questions that I raised in my reply to your first. I did not ask whether you could imagine restrictions on civil liberties that you would approve of (I didn't think you an anarchist), but whether you had ever "encountered a protection of civil liberties that you thought went too far." The examples you give—the right of white males to protection against certain forms of racial discrimination, the right of sellers to engage in commercial advertising, and the duty of government not to discriminate, in funding, against religion—are ACLU bÍtes noirs rather than anything to do with the protection of the United States against terrorists. So let me ask you, concretely, whether you would oppose section 215 of the PATRIOT Act if it were modified to require that the government, when it demands records, present some reason to believe that the records contain information relevant to a national security investigation rather than—your formulation, which my previous posting criticized as unresponsive to the needs of national security intelligence—"reasonable suspicion that the target of the investigation may be involved in terrorist activities." If you think these are equivalent formulations, then fine, we have a point of agreement and the first example of your willingness to bend civil liberties to imperatives of national security. (There must be others; for other provisions of the PATRIOT Act restrict civil liberties, yet seem not to trouble you.)

Another question: Were it known that a terrorist was driving toward Chicago with a bomb, would you think it an improper restriction of civil liberties to stop and search all cars approaching Chicago, even though there would be no probable cause to suspect any given driver of carrying a bomb? Or suppose a kidnapper has buried his victim alive and refuses to tell the police where. A policeman punches him in the face to make him talk. Would you think the policeman had acted improperly?

I asked in my previous posting whether, were it true that some restriction on hate speech in Britain would prevent further suicide bombings, you would nevertheless reject the restriction; I take it your answer is no, but I welcome correction.

You say you're a balancer, which is a welcome acknowledgment; but I'm made doubtful by your contention that restricting civil liberties should be a last-resort response to threats to national security. That (depending however on exactly what you mean by "last resort") is not balancing. Suppose an equally efficacious alternative to my suggested reformulation of section 215 would be to spend $100 billion on hardening potential targets of terrorists. Then the reformulation of section 215, with its restriction, modest though it would be, of civil liberties, would not be the last resort. Would you therefore insist on the $100 billion expenditure instead?

What I particularly miss in your second posting is any discussion of the menace of terrorism. Do you think terrorism is something we should worry about? Worry a lot about? Is it mere fantasy to fear that terrorists may obtain weapons of mass destruction and attack the United States with them? Are you interested in the terrorist threat? Do you think President Bush invented it—or has defeated it? I don't think it's enough to say, "Who cares about the present and the future—I have history." History does teach lessons, including, however, erroneous ones. Lyndon Johnson and his advisers persisted in fighting in Vietnam in part because they feared "another Munich." Nevertheless I expected you to quote Santayana against me—those who cannot remember the past are condemned to repeat it—to which I would have replied with what was said of the Bourbon kings, that they learned nothing and forgot nothing. And if you want to cite the Sedition Act and the Japanese internment against me, I want to cite Lincoln's suspension of habeas corpus against you, and remind you that the Soviet Union did penetrate the U.S. government during World War II and did steal atomic secrets that may have emboldened Stalin to encourage North Korea to invade South Korea, and that the Communist Party U.S.A. was an organ of Soviet foreign policy rather than an authentic political party.

But I am beginning to wonder what exactly we're arguing about. So far, your criticism of the U.S. response to the terrorist threat has been limited to section 215 (for let us leave the British response to the London bombings to the British), and it is unclear whether we actually differ on the proper criteria for compelling access to records that may contain information useful for national security investigations.

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Stone: 10/5/05, 09:31 AM
Gee, Dick, I hadn't realized I was being cross-examined. If I had, I'd have brought my lawyer—if you'd let me.

With respect to your question about section 215, no, I would not accept your reformulation. It is too open-ended. Almost any half-baked claim would satisfy your standard. I don't have the same confidence as you in the inherent integrity and goodness of government agents in domestic security investigations. History teaches (I know, there I go again) that if you give such investigators an inch they'll take a mile. Moreover, when a domestic security investigation concerns protected First Amendment activity, such as one's choice of reading matter or one's political associations or activities, you don't adequately acknowledge the problems caused by FBI files or how they've consistently been abused to penalize political dissenters rather than criminals and terrorists. And given the extraordinary power of modern technology, the danger of such abuse is much greater than ever before. Doesn't that count for anything when you "balance"?

As for my response to your query about whether I've ever "encountered a protection of civil liberties that I thought went too far," I did, indeed, respond to your question. I gave several very clear illustrations of instances in which I think the protection of civil liberties has gone too far. I can't imagine why you think they're unresponsive because they are "ACLU bÍtes noirs." What does that have to do with anything? And what do you have against the ACLU, Dick?

Anyway, you've now clarified your question. You want to know if I would approve any restrictions of civil liberties in order to protect the United States against terrorists. Yes. I would approve sneak-and-peak searches and roving wiretaps, if the government has probable cause to believe the target is engaged in terrorist activity and there is a legitimate justification to use these techniques. I would also approve more intensive screening at the border of containers and individuals coming from certain countries. These seem to me examples of reasonable intrusions on civil liberties that may well serve legitimate investigative ends without unduly limiting individual freedoms. I would also strongly encourage the government to invest a lot more money in FBI computers, border guards, etc., and I wish the President cared enough about our security to divert some money from his tax cut for the wealthiest Americans to make these measures possible.

As for your hypothetical about a terrorist driving toward Chicago with a bomb, I would permit a roadblock at which all drivers were checked, as long as there was probable cause to believe there was such a terrorist and the roadblock was carefully time-bound and even-handedly administered. I don't think there's anything all that new in that. We already allow the government to screen airline passengers, and that seems a reasonable analogy. On the other hand, to deal with my concern about pretext, I would require the exclusion in court of any evidence obtained at a roadblock except against the suspect being pursued (that is, the terrorist with the bomb).

Your second hypothetical is one of those cute "law school" hypotheticals that we law professors love to use to confound our students, but which have little to do with the real world. The "game" is to test the limits of a principle by identifying a hypothetical to which the student would not apply the principle. We then say "gotcha," as if we're brilliant. But I agree with Holmes: Hard cases make bad law. These hypotheticals and fun and even instructive, but we should not create constitutional (or other legal) doctrine in order to deal with the once-in-a-lifetime hypothetical. The hypothetical is entertaining, but I would not worry much about it in framing the constitutional principles that we need to address real issues that arise everyday in the real world.

So, I would respond as follows: Would you say it is O.K. for the interrogator not just to punch the kidnapper, but to pull out his fingernails and attach electrodes to his testicles? To cut off his fingers? Would you allow the interrogator to rape the kidnapper's six-year-old daughter in order to get him to speak? Both his six-year-old and his five-year-old daughters? And how much weight do you give to the possibility that he may not be the kidnapper? In the real world, the interrogator will never (or almost never) know that for certain? And, of course, there's been no trial or hearing to make such a determination. All we're dealing with in this situation is the unchallenged conclusion of some law enforcement officers that "he's the one." Does this worry you?

Suppose we are dealing not with a kidnapper, but with a terrorist who we believe has planted a bomb in the Sears Tower. Suppose you have reason to believe the terrorist is currently in a building with 1,000 people in it, and you believe he has to push a button to detonate the bomb. Would you blow up the building with the 1,000 people in it? Suppose you thought as many as 10,000 people might die in the Sears Tower if the bomb goes off and you're 11% right about the terrorist. I assume you'd happily kill the 1,000 people. Right, Dick?

Let me pose one more example. Suppose The New York Times receives a secret document disclosing that at a prisoner of war camp (do we call them that, or do we call them unlawful combatant camps?) in Iraq American soldiers had murdered 100 POWs/UCs. You are a judge. (How convenient to the hypothetical.) The government seeks an injunction against the Times's disclosure of this information, supported by an affidavit that if this information is made public the insurgents will certainly execute at least 100 Americans in retaliation. How do you "balance"?

You ask what I think about the threat of terrorism. It is a real threat. I would not be shocked (as I was on 9/11) to wake up tomorrow to learn that the Sears Tower had been blown up. I would also be shocked, though, to learn that our government is actually taking the necessary precautions to deal with the threat. And I see no reason to believe that the best way to make us safe is to limit the freedom of speech or the right of privacy. I don't deny that limiting such rights might help make us safer from terrorism, but they would also undermine the workings of our democracy and the respect for individual rights that I believe make this nation special. You don't seem to give that any weight at all. I would be the first to concede that a police state is great for improving security. But the last time I looked you hadn't moved to North Korea.

Finally, you ask whether my only complaint about the Bush administration and civil liberties is section 215 of the Patriot Act. Hardly! Here are a few more examples: (1) I strongly object to John Ashcroft's evisceration of the Levi Guidelines, which were put in place by Attorney General Edward Levi in the mid-1970s and forbade the FBI from investigating political or religious organizations in the absence of clear and articulable information that the organization was engaged in unlawful activities. (2) I strongly object to the Bush administration's secret roundup of roughly 1,000 non-citizens after 9/11. (3) I strongly object to the administration's decision (for the first time in American history) to close from public view almost 1,000 deportation proceedings, thus denying American citizens any opportunity to understand or evaluate what the government was doing to these individuals, or why. (4) More broadly, I strongly object to the Bush administration's obsessive secrecy and its desire to prevent the citizens of a self-governing society to assess for themselves what the government is doing in their name. (5) I strongly object to the administration's manipulation of the images of war in order to "cleanse" the reality of combat from the American people. (6) I strongly object to the administration's use of government funds for partisan political purposes, an abuse recently condemned by the Inspector General. (7) I strongly object to the administration's treatment of foreign combatants, which I believe to be in violation of international law and in direct defiance of the decisions of the Supreme Court in 2004. (8) Most of all, I strongly object to the extraordinary and unprecedented claim by this administration that the President of the United States has the inherent constitutional authority, even over express congressional legislation to the contrary, and without any judicial approval, to order military officials to seize an American citizen on American soil, to take him to a military brig without informing his friends, family, co-workers, or neighbors of his whereabouts, to deny him any access to counsel or to judicial review of the legality of his detention, and to hold him incommunicado for an indefinite period of time, solely on the basis of a determination by someone in the executive branch that the citizen is something called an "enemy combatant." Dick, I don't casually throw around the term "Gestapo-like tactic," but let's call a spade a spade. This is simply making a person disappear. This is your idea of the rule of law?

Posner: 10/5/05, 01:51 PM
Geof, I am happy to respond to your questions; and, yes, you should feel free to consult your lawyer before trying to answer my barbed and loaded questions.

To correct a pervasive misunderstanding: I do not believe in the inherent integrity or goodness of criminal investigators. I do not deny the history of abuses of civil liberties by the FBI, though your preoccupation with history seems to have blinded you to the fact that the Bureau has become a good deal less free-wheeling since the J. Edgar Hoover era now more than three decades in the past. I believe I have a closer personal acquaintance with civil-liberties abuses than you. My mother was forced out of her job as a public school teacher, and later hauled before the House Un-American Activities Committee, because of her communist sympathies. I consider her political views to have been idiotic, but I am quite sure that she was completely harmless. Of course if the reins are loosened there will be more abuses; and of course those abuses are costs that must be reckoned in striking the balance between safety and liberty. I just wish you gave as much weight to safety as you do to liberty. You say that you worry about terrorism, but the only example of your concern that you give is another tall building being destroyed. My concern focuses on weapons of mass destruction, which seem to me to have brought about a quantum leap in the menace of terrorism.

You've ducked (on advice of counsel?) my question whether it should be permissible for the police officer to punch the kidnapper in the nose to save the kidnap victim (this ducking is a typical "denial" reaction of civil libertarians—one can never get them to acknowledge that coercion ever yields truthful information). Your reason seems be that cases of torture "have little to do with the real world" and occur only "once in a lifetime." Would it were so. I'm left uncertain whether you're really a balancer. I would hope that you are, in which event the issue between us could be reduced to concrete questions such as whether section 215 of the PATRIOT Act should be recast to permit a demand for records that may contain information relevant to an investigation of terrorism or, as you argue, to permit such a demand only if the records may contain information about a terrorist suspect. You worry that my reformulation is too open-ended; but what is "too open-ended" depends on the magnitude of any offsetting benefits, which you don't discuss, though I pointed out that there were such benefits once the difficulties of national security intelligence are acknowledged. So once again I worry that you are trying to fly with only one wing.

I sense a systematic underestimation on your part of the terrorist threat, an underestimation connected to your preoccupation with history, although I am glad to see that you are not repeating what you said at our debate at the New York Public Library on September 20—that you admire the courage of a person who is willing to die for a cause, even if it is a bad cause and (implicitly) even if he is trying to kill others as well as himself. We musn't be imprisoned by history. May I quote from an opinion I wrote several months before the 9/11 attacks? The issue was whether to modify a consent decree that had been entered in 1981 sharply restricting the authority of the Chicago police department to investigate terrorist activity. The basis of the decree was violations of civil liberties that had been committed by the department's "Red Squad" in the Vietnam era. In holding that the decree should be modified, I said

The era in which the Red Squad flourished is history, along with the Red Squad itself. The instabilities of that era have largely disappeared. Fear of communist subversion, so strong a motivator of constitutional infringements in those days, has disappeared along with the Soviet Union and the Cold War. Legal controls over the police, legal sanctions for the infringement of constitutional rights, have multiplied. The culture that created and nourished the Red Squad has evaporated. The consent decree has done its job...The City wants flexibility to meet new threats to the safety of Chicago's citizens. In the heyday of the Red Squad, law enforcers from J. Edgar Hoover's FBI on down to the local level in Chicago focused to an unhealthy degree on political dissidents, whose primary activity was advocacy though it sometimes spilled over into violence. Today the concern, prudent and not paranoid, is with ideologically motivated terrorism. The City does not want to resurrect the Red Squad. It wants to be able to keep tabs on incipient terrorist groups. New groups of political extremists, believers in and advocates of violence, form daily around the world. If one forms in or migrates to Chicago, the decree renders the police helpless to do anything to protect the public against the day when the group decides to commit a terrorist act. Until the group goes beyond the advocacy of violence and begins preparatory actions that might create reasonable suspicion of imminent criminal activity, the hands of the police are tied. And if the police have been forbidden to investigate until then, if the investigation cannot begin until the group is well on its way toward the commission of terrorist acts, the investigation may come too late to prevent the acts or to identify the perpetrators. If police get wind that a group of people have begun meeting and discussing the desirability of committing acts of violence in pursuit of an ideological agenda, a due regard for the public safety counsels allowing the police department to monitor the statements of the group's members, to build a file, perhaps to plant an undercover agent. All this the First Amendment permits (unless the motives of the police are improper or the methods forbidden by the Fourth Amendment or other provisions of federal or state law) but the decree forbids. The decree impedes efforts by the police to cope with the problems of today because earlier generations of police coped improperly with the problems of yesterday. Because of what the Red Squad did many years ago, today's Chicago police are fated unless the decree is modified to labor indefinitely under severe handicaps that other American police are free from. First Amendment rights are secure. But under the decree as written and interpreted, the public safety is insecure and the prerogatives of local government scorned. To continue federal judicial micromanagement of local investigations of domestic and international terrorist activities in Chicago is to undermine the federal system and to trifle with the public safety.

I agree with you that curtailing civil liberties cannot be the only response to the threat of terrorism. Giving the FBI more money for computers won't do anything—the Bureau has blown $170 million in trying to create "Virtual Case File," with nothing to show for its efforts. But other protective measures should certainly be instituted, and I would not oppose a tax hike to finance them. If those measures are not instituted, however, I do not think we can refuse to consider, as a second-best response, some relaxation of Warren Court civil liberty protections. Second best is not necessarily a synonym for worst.

You close with a number of complaints about recent restrictions on civil liberties—this in response to my comment that you seemed concerned with only one section of the PATRIOT Act. I don't think any of your complaints are actually about provisions found in the act, but that is a detail. Some may well have merit. Some involve constitutional questions that the Supreme Court eventually will resolve. None are measures that I've defended—with one exception. That is the supersession of the "Levi Guidelines," which I believe were too restrictive in authorizing a "full investigation" of a group by the FBI only where there is reason to believe that the group "may be engaged in activities which involve the use of force or violence and which involve or will involve the violation of federal law." However, while the group may not yet be engaged in any such activity, it may be planning to engage in it or thinking of engaging in it and may have overlapping membership, finances, etc. with groups engaged in or planning such activity. As I explained in an opinion for my court way back in 1984,

the government must be permitted to investigate any group that advocates the commission, even if not immediately, of terrorist acts in violation of federal law. It need not wait till the bombs begin to go off, or even till the bomb factory is found. We are not speaking metaphorically. Between 1970 and 1980, domestic terrorist organizations committed more than 400 bombings in the United States. The FBI cannot hope to nip terrorist conspiracies in the bud if it may not investigate proto-terrorist organizations. That is why...the FBI would not be violating the First Amendment...if it decided to investigate a threat that was not so immediate as to permit punitive measures against the utterer. Since the repressive effect of an investigation is less than that of a prosecution but the benefits in preventing violent crime may be as great, a less immediate danger will justify the government's action. Admittedly the repressive effect will not be zero. No one wants his name in an FBI investigatory file; and the knowledge that the FBI investigates groups that advocate violent change could deter some people from joining such groups and deter the groups themselves from engaging in lawful though minatory forms of advocacy. There would therefore be a cost to the values protected by the First Amendment, if the groups never stepped over the boundary that separates privileged from indictable speech. But we think the cost would be outweighed by the benefits in preventing crimes of violence, provided that the FBI did not prolong its investigation after it became clear that the only menace of a group under investigation was rhetorical and ideological.

Finally, you ask what I have against the American Civil Liberties Union. Just this: that by always taking the liberty side in a liberty-security face-off, it has shown itself to be just another monocular interest group, blind to tradeoffs. Maybe you've seen a restriction on civil liberties that you like, but has the ACLU unless it's a restriction on the rights of abortion protesters? Wouldn't the ACLU have greater credibility and influence if it sought the optimal balance between safety and liberty, rather than remaining always planted on the liberty side of the seesaw?

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Stone: 10/6/05, 09:25 AM
I love that you've shared your upbringing, Dick. Of course, from our many dinners with Charlene and Nancy, I've known for years that you were a "Red diaper baby," but I'm sure this will fascinate many of our readers, who will now drag out their dog-eared copies of Freud to read up on the "reverse Oedipal complex." And, of course, you've inadvertently affirmed my insistence on the relevance of history! Let's see, how does it go: A liberal is a conservative who's been mugged; a conservative is a liberal who's been arrested; and an advocate of law-and-economics is a Red diaper baby whose mother's been hauled before HUAC.

As long as we're entering the realm of personal history, I have to reciprocate. You devote considerable attention in your third post to your opinion in Alliance to End Repression v. City of Chicago. As you may once have known, when I first became your colleague as a spanking new law professor at the University of Chicago, I worked (in a bit role) on that very case. The lawyers for Business and Professional People for the Public Interest (BPI), which was representing the ACLU as a named-party in the case, sought my advice about the draft complaint. I had a big problem with it. The allegations in the complaint seemed like sheer paranoid fantasy. "Do you really believe the FBI did these things?" I asked. It all seemed highly improbable. (How innocent I was in those days!) I argued that the ACLU had gone off the deep-end in making such incredible assertions of massive government wrongdoing. I'm quite sure I said something like: "You'll destroy your credibility if you make those allegations." I even got them to trim a little.

Later, though the process of discovery was like pulling teeth, we learned over several years that what the FBI and the Red Squad had actually done was many, many times worse than what anyone (including the guys wrapped in aluminum foil to protect themselves against alien death rays) had ever imagined. What we learned was simply staggering in terms of the scale, invidiousness, and ruthlessness of the government's secret actions. As a constant reminder of this, by the way, I still display in my office at the law school a blow-up of a 3 x 5 card from a Red Squad file that reports that, after seeing a bumper sticker on another car reading "slow down for peace," John Smith (not his real name) "slowed down." For this rather modest act of protest, this radical terrorist wound up being listed by the government as an enemy of the State. Yes, Dick, I do learn from history.

By the way, you mention that these were the bad old days, and that the FBI is a much different institution today than it was in the 1950's, '60s, and '70s Thus, we no longer need civil liberties organizations to fret over it. Dick, why do you think the FBI "has become a much less free-wheeling" institution today than it was in the 1950s, '60s, and '70s? The answer, of course, is that this was brought about by the hard work, "paranoid" fears, and remarkable persistence of civil libertarians. It surely isn't the result of a law- and-economics based cost-benefit analysis. Let's give credit where credit is due.

I have to make three further points about Alliance to End Repression. First, at the purely personal level, you may have forgotten that Nancy (readers: my wife) worked as a paralegal for BPI in the 1970s. She was the person in charge of reading, redacting, and characterizing the tens of thousands of "classified" documents BPI obtained from the government during the course of discovery. The FBI agents in the Chicago field office, who eventually became her fast friends, referred to her as the "Spy Queen of Chicago." And, to add a bit of romance to it all, when Nancy and I first met on a blind-date in 1975, we spent the evening studying the draft complaint together. So much for the love-life of civil libertarians!

Second, you "quote" me as saying in our debate at the New York Public Library on September 20 that I "admire the courage of a person who is willing to die for a cause, even if it is a bad cause and (implicitly) even if he is trying to kill others as well as himself." Good Lord, Dick, that was a hypothetical! I was voicing the position of a hypothetical dissenter and then asking whether we would really want to silence such a person. This is a perfect illustration of what's wrong with your idealization of secret agents. People hear what they want to hear, and then record it in the "Terrorism Squad" files that haunt people for decades. Because of your misunderstanding of my comment (now broadcast over the Internet!), you can be sure that someone deep within the bowels of the FBI has already entered my "dangerous views" into a government computer. Thanks a lot, Dick! There must be a libel suit in here somewhere.

Third, Dick, insofar as the consent decree in Alliance to End Repression went beyond, say, the Levi Guidelines, I agree that it required more than the law would otherwise have required. But if that wasn't so, why would the plaintiffs have settled the case? It would make no sense to settle for what the law already gives you. And, of course, in entering into the consent decree, the government fully understood it was agreeing to restrictions that went beyond what the law already demanded of it. But why would the government have entered into such a settlement? The answer, to those of us involved in the litigation, was crystal clear. The government did not want its undercover operatives called to the stand for fear that this would deter others from serving as secret agents in the future. So it agreed to greater restrictions on its conduct than the law otherwise required. What your opinion in Alliance to End Repression did was to undercut the ability of parties to make a rational cost-benefit analysis at the time of settlement. By upsetting the expectations of the parties because you thought they should have made a different bargain, you undermined the willingness of future civil liberties plaintiffs to settle and thus made it more difficult for the government to protect the confidentiality of its informants in the future. This was a surprising performance for a judge who values incentives!

You characterize me as demonstrating the "typical 'denial' reaction of civil libertarians" because I didn't resolve your "punching the kidnapper" hypothetical. Give me a break. Do you really think civil libertarians have a gene that causes them to duck hard questions? If anything, I would have thought you believe the opposite. After all, you accuse the ACLU of taking extreme positions on all sorts of issues. That doesn't seem to me like evasion. Moreover, I can't help but note that although you said you would be "happy to respond" to my questions, you haven't actually done so! So, where do you get standing to chastise me on this count? (I assume your reason for ducking my questions was the same as mine for not responding to all of yours: We can only expect our readers to read so much.)

In any event, since I'm a good sport, and get a kick out of it when you try to bait me, I'll do my best to resist my "natural civil libertarian inclination to evade hard questions," and address your hypothetical. The self-incrimination clause provides that the government may not coerce an individual into revealing information that it will use against him in a criminal prosecution. It does not, however, deal with the use of force itself. That is a due process question. When does the government's use of force to compel an individual to reveal information that will not be used against him in court violate due process? I suppose I would accept the American statutory law on torture (not, though, as interpreted by the Bush administration) as a more or less reasonable standard in this context. I assume punching someone is prohibited; certainly the use of electrodes on the testicles is forbidden.

Is that irrational? Can we justify "allowing" the kidnapped child to die because we are unwilling to torture the suspect (and that's all he is or can be at this point)? Here's what would actually happen, Dick. If the police truly believed the suspect knew the location of the child, they would beat it out of him. Assuming the suspect survived the beating, he might later sue, or there might be an official inquiry. No court (other than yours?) would uphold the use of torture, even in such circumstances. It would undoubtedly blather on about fundamental principles of morality. But if the court or investigating agency found that the police officer had acted reasonably (unlike, say, Lynde England), but unlawfully, it would give him a reprimand, and he would publicly be hailed as a hero. And life would go on. And we would not have made a terrible precedent that would come back to haunt us later. Imperfect? Sure. Better than the alternatives? You bet.

Finally, a word on the ACLU. You just don't get it. The ACLU isn't a decision-making body. Its function is not to decide what the law is. It is, rather, to advocate points of view that are fundamental to American freedom, views that would not otherwise be adequately represented. Its function is to ensure that judges and legislators as least hear the civil liberties side of the argument. I might not want to live in a society in which every ACLU position was the law, but I know I would not want to live in a society without the ACLU. Moreover, you fault the ACLU for sacrificing its credibility by sometimes taking positions that seem to you (and to many Americans) irresponsible. Perhaps this is so, but it is much better to fight one's battles on the periphery than at the core. I would much prefer to litigate over whether the government can constitutionally investigate library records than whether it can ban books. By effectively defining the terms of the debate, the ACLU does an extraordinary service for the American people. (By the way, I thought you were a member? Have you withdrawn?)

Posner: 10/6/05, 12:39 PM
Geof, your response to my question about the punch in the nose (not a hypothetical case, by the way—a real case, except that the policeman didn't punch the kidnapper but instead choked him until he revealed the whereabouts of the kidnap victim—who was saved, and the kidnapper's suit against the policeman was thrown out) raises a very interesting jurisprudential question, on which I want to focus in this posting. But let me first reply to a few lesser points:

Your claim that the reform of the FBI was due to civil libertarians is, I believe, mistaken or at least exaggerated. It was due, rather, to the death of J. Edgar Hoover, to the waning of the fear of communist penetration of American government, and to the revelation of the executive branch abuses committed by Nixon (and indeed by his predecessors). I also disagree that the modification of the consent decree in Alliance to End Repression weakened the government. It was the government that asked us to modify the decree. It didn't have to, and presumably would not have done so had it thought that modification would hurt it. Regarding the ACLU: Does the Solicitor General take to the Supreme Court every case the government loses? Of course not. He picks and chooses in order to maintain his credibility with the court. As a judge I can attest that the lawyer who has the greatest credibility with a court is the lawyer who creates the impression that he is detached, that he sees both sides of the issue, that he moderates his demands, and that he does not press a hopeless case. The ACLU would be more effective in its advocacy if it gave judges the impression that it understood that liberty is not the only value that determines the scope of civil liberties, that public safety and national security are constitutional values although not constitutional rights and deserve equal weight in the balance.

But now to the punch in the nose. You make two points. The first, which is in the spirit of "denial," is to suggest that we would never have to choose between the life of the kidnap victim and the kidnapper's nose because the policeman would go ahead and punch him regardless of what the law says. I hope that is true, but am not confident, as the officer will face a suit by the kidnapper, who will of course be represented by the ACLU (should it take the case, in your view?). But your second, and more interesting, point, though also in the spirit of denial, is that if the police officer had acted "reasonably"—though in your view he would unavoidably be acting unlawfully—he would merely be given a "reprimand," and "haled as a hero." The suggestion is problematic. Either the officer is violating the constitutional right of the kidnapper, or he is not. If he is, then the kidnapper is entitled to damages for the injury to his nose, and it would be lawless to give him nothing and merely reprimand the officer. You don't want torture, in however attenuated a form and however desperate the circumstances, to be lawful, but you flinch from the possible consequence of your strict rule: the death of the child and the award of damages to the kidnapper.

But here is the interesting question. It is whether to govern these difficult and sensitive issues by a rule or a standard. Although I believe that legal principles are and generally should be determined on the basis of a balancing of competing interests, it is a separate question whether to embody the balance in a rule or in a standard. The rule will be simpler to enforce but its application is likely to produce occasional anomalies. The standard avoids the anomalies but by its inherent sponginess invites applications that may alter its scope in an undesirable way.

Let's consider the choice with reference to Abraham Lincoln's suspension (which you have declined to comment on in our debate) of habeas corpus at the outset of the Civil War. I believe that he was justified in suspending habeas corpus because the Union was in grave peril and to prevent a collapse Lincoln had to demonstrate unflinching resolve to resist the succession and one way to demonstrate that resolve was to act sternly against disloyal citizens. Now one response might be to say, well, if he was acting justifiably, let's amend the Constitution to authorize the president to suspend habeas corpus in an emergency. The alternative, which is the one that has been chosen by default, is to say that we're not going to give the president that legal authority but we're going to expect him to suspend habeas corpus in violation of the Constitution if that is necessary (as Lincoln believed) to save the nation. I prefer the latter approach. If the president is legally authorized to suspend habeas corpus in an emergency, he will be tempted to test the outer bounds of "emergency" (or whatever formula is chosen to define his authority), because presidents are always eager to maximize their power. If the legal authority is withheld, the president will be cautious in his definition of an emergency, since if the exigent need of his violating the Constitution is not plain, he will pay a large political price for his illegal action, as Nixon did. (For amplification of this argument, see chapter 8 of my 2003 book Law, Pragmatism, and Democracy.)

Against this background, I return to the policeman who punches the kidnapper in the nose. I can see—if fact I've just made—the argument for saying that torture is never legally justified, and we can just hope that the policeman has both the judgment and the moral courage to violate the law in an extreme situation and pay the price. The alternative would be to recognize a "reasonableness" defense to torture suits in exigent circumstances. I would be inclined to split the difference, as follows, arriving at a result not unlike what you, Geof, seem to favor: no defense for torture, but no award of damages in a case in which the police officer is able to show that his action was a reasonable response to a desperate situation. This would be a (novel) form of qualified immunity, which occasionally allows a public officer to escape liability for damages for an illegal act that he has committed.

There is a parallel to the famous cannibalism case, Regina v. Dudley & Stevens. The defendants, adrift on the open sea in a lifeboat after their ship sank, killed and ate the third person in the boat, a cabin boy. The cabin boy was dying, and all three would probably have died had the defendants not resorted to cannibalism. They were nevertheless prosecuted for murder, convicted, sentenced to death—and immediately pardoned. That was an ad hoc response, and I am suggesting something more systematic—a partial defense. This may be the type of solution required to deal sensibly with the not-so-hypothetical cases that will become more common as we move deeper into the era of international terrorism and weapons of mass destruction.

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Stone: 10/7/05, 08:13 AM
It's heart-warming that we've come to such agreement, Dick. Your view of Lincoln's suspension of habeas corpus (at least his first suspension of the writ) is essentially what I suggest in the torture case, and I like your way of characterizing it as a qualified immunity. I'm not sure we need to go even that far, however. Once such an immunity is formally recognized in the law, we effectively move from a clear rule (which I prefer) to a more flexible standard. Because I believe prosecutorial discretion, jury nullification, congressional timidity, etc. will take care of the problem, I'm inclined to stick with the clear rule (e.g., no torture; no presidential suspensions of habeas corpus) and leave the rest to the discretion and judgment of enforcement agencies.

Interestingly, early in his career Lincoln himself expressly embraced the rule-based approach. In 1848, he corresponded with his friend and partner William Herndon about President Polk's unilateral decision to invade Mexico. Herndon argued that the president must be the "sole judge" of whether force is necessary to repel an invasion. Lincoln adamantly disagreed: "Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary, and you allow him to make war at pleasure. . . . Your view places our President where kings have always stood."

Thirteen years later, when he was himself president, Lincoln whistled a different tune. Despite the pretty clear allocation of the suspension power to congress, he unilaterally suspended the writ shortly after Fort Sumpter to save the capital from a possible secessionist invasion. Moreover, he did this in direct defiance of Chief Justice Taney's order in the Merryman case holding that Lincoln had no constitutional authority to suspend the writ. Nonetheless, it all worked out well in the end.

If congress had thought Lincoln's action unconstitutional and a serious usurpation of congressional authority, it could have impeached him. But because congress was not in session at the time Lincoln acted, and could not have been called into question quickly, it decided that his action was reasonable in the circumstances. Rather than impeach him, it ratified his action after the fact. This does not make Lincoln's conduct constitutional, but solved the problem in a practical and effective manner.

As for the ACLU, I don't think you give it enough credit for making difficult choices in a world of very scarce resources. The ACLU does not take every tomdickandharry case that comes its way. To the contrary, it selects its issues very carefully, and pursues matters only when it believes that the issue is important and that it has a reasonable chance to accomplish something worthwhile. It does not tilt at windmills.

More important, the ACLU does take competing interests into account when it defines its positions, including legitimate claims of national security. You often disagree with the ACLU (as do many Americans) about the merits of its positions, but that doesn't mean it's not making serious, reflective, and thoughtful choices. And, of course, it's perfectly predictable that the majority of Americans usually disagree with most ACLU positions because the very point of the ACLU is to defend civil liberties that the majority has already decided to disdain. But that, of course, doesn't make the ACLU wrong. You need to cut the ACLU some slack. After all, you're the guy who wrote an article thirty years ago on why baby-selling is a good idea! Sometimes a little boldness shakes things up for the better.

I want to close by trying not to evade your concern about terrorism and weapons of mass destruction. You are quite right that we live in a more dangerous world than ever before. Never in human history has one person, or one small group of persons, had the capacity to cause disaster on so massive a scale. A terrorist with a biological, chemical, or nuclear weapon can kill more people in one day than all the murderers in the history of our nation.

This is, indeed, a terrifying threat, and like you I do not think our government is taking it nearly seriously enough. But I remain convinced that restrictions of civil liberties should be a last rather than a first resort in our response to this danger. Many more Americans have died to protect our liberties than would likely die in even the worst imaginable terrorist attack. Moreover, we are about not only survival, but survival in a certain way. If we value our liberties, and I do, we should do everything possible to avoid sacrificing them unnecessarily. Particularly at a time when the threat of terrorism may not be a short term phenomenon, the unnecessary sacrifice of our fundamental liberties could undermine our society forever. Let's not go there unless and until we've seriously tried everything else.

Posner: 10/7/05, 12:15 PM
It's been a pleasure debating with you, Geof. Though we disagree, I respect your point of view and your vigor and tenacity in defending it.

And actually I agree with much that you say in your final post. I have two points of disagreement, the first trivial. Much as I like the notoriety that has accrued to me over the years as a result of being reputed to have advocated baby selling in the article you refer to (25 not 30 years ago), it is, alas, not true. The article first points out that restrictions on the amount of money that adoption agencies are allowed to pay pregnant women (just maintenance and medical expenses) had created a shortage of babies for adoption, which seemed anomalous considering the number of abortions performed every year. The article proposes, therefore, that some agencies be permitted to pay pregnant women planning an abortion an additional sum of money to induce them to carry the child to term and put it up for adoption. I still think that this would be a worthwhile experiment, although my impression is that the shortage of babies for adoption has eased because of the availability of Chinese baby girls for adoption by Americans and continued improvements in fertility treatments.

My other and more relevant disagreement with your final post centers on your statement (and the justification you offer for it) that "restrictions of civil liberties should be a last rather than a first resort in our response to this danger"—a danger that I am pleased to see you do not dismiss. I don't think it's helpful, however, to talk in "last resort"-"first resort" terms. That's rhetorical rather than analytical. Restrictions on civil liberties should be neither a last resort nor a first resort nor an intermediate resort. One should trade off different responses to the terrorist threat at the margin, comparing (in cost-benefit terms), for example, a small restriction on civil liberties with a small increase in hardening particular potential terrorist targets.

I don't think it's true, by the way, that "many more Americans have died to protect our liberties than would likely die in even the worst imaginable terrorist attack." If you think about the casualties in the Civil War (more than 600,000 killed), the most costly war in U.S. history, roughly half died in an effort to preserve a slavocracy and the other half to preserve the union, a basically nationalist undertaking (Lincoln himself made clear that freeing the slaves was a distinctly secondary objective to preserving the United States as a single country). Our participation in World War I was intended primarily to maintain the balance of power. World War II was a defensive war (likewise the Korean War), but the Americans who fought and died in it were fighting for America rather than for the Bill of Rights. I do think these are different things. I'm not one of those people who think that if civil liberties were rolled back to where they were before the Warren Court began its quixotic search for constitutional nirvana, the country wouldn't be worth fighting for. The Russians fought bravely in World War II in defense of a country that had no civil liberties at all. We fight to live, to prosper, and to feel safe, rather than to vindicate the litigation choices of the American Civil Liberties Union and the accidents of judicial appointment.

Not that one can flatly disagree with you when you say "we are about not only survival, but survival in a certain way." There are fates worth than death (but are you a "better dead than Red" man?). But, to repeat, life without the self-incrimination clause, without the Miranda warnings, without the Fourth Amendment's exclusionary rule, with an unamended USA PATRIOT Act, with a depiction of the Ten Commandments on the ceiling of the Supreme Court, even life without Roe v. Wade, would still, in my opinion anyway, be eminently worth living.

And of course the issue is not "the sacrifice of our fundamental liberties." You made that clear in your first posting. The measures taken after the 9/11 attacks do not come close to constituting the rollback to the 1950s that I would be prepared to live with—having lived with it once (I am older than you). My family survived its brush with McCarthyism quite nicely, as did most of McCarthy's victims. So let's not make a religion of civil liberties.

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