Sunday, September 17, 2006
As the right sidebar has advertised for the last week, I have been reading Judge Richard A. Posner's most recent book, Not a Suicide Pact: The Constitution in a Time of National Emergency. I may or may not work up the energy for a full-blown review, but I did want to pass along one of the book's crucial insights -- that we need not think of "terrorism" as either a "crime" or an act of "war":
As with so many legal dichotomies, that of "crime" versus "war" does not fit an emergent reality, in this case that of global terrorism. It is an occupational hazard of lawyers to stall in their consideration of issues at a semantic level. Rather than ask whether modern terrorism is more like crime or more like war and therefore which bos it should be put in, one should ask why there are different legal regimes for crime and war and let the answer guide the design of a sensible regime for fighting terrorism. It is not war as such but the dangers created by war that explain and justify a curtailment of civil liberties in the waging of war. A similar curtailment may be justified by the dangers posed by terrorists avid to acquire weapons of mass destruction. The constitutionality of subjecting terrorist suspects to trial by military tribunal ought to depend not on whether the "war against terrorism" is really a war (and there is no "really," since one is speaking of definitions, and definitions are mutable) but rather on whether there is a strong enough national security interest in so proceeding to overcome the prudent reluctance to enlarge the wartime powers of the president and Congress by expanding the conventional definition of "war."
This is actually a liberating perspective, which the government might be wise to embrace. Instead of pretending that the Constitution makes the president a military dictator and trying to shoehorn the struggle against global terrorism into a box labeled "war" and debating over whom exactly Congress was declaring war on in the AUMF, the government would be pointing to facts that show that modern terrorism is so dangerous, and so unlike ordinary crime, that the ordinary processes of criminal justice must be modified. The terrorism problem is sui generis; so should be the solution to it.
It is a shame that all those from the President to John McCain to Nancy Pelosi to the pundits who are arguing this week over the appropriate legal response to terrorism will not have read Posner's short, veil-lifting book before doing so.
"[M]odern terrorism is so dangerous, and so unlike ordinary crime, that the ordinary processes of criminal justice must be modified. The terrorism problem is sui generis; so should be the solution to it."
Rubbish. Posner's standards of what is sui generis are way too generous. Why not label the war on drugs sui generis and attempt to remove it from the ordinary constitutional standards of due process? Look at all the damage, the death, the gang wars, the funding for guerilla groups that have come out of the illegal narcotics trade. Over time, I think you'll see far more damage caused as a result of narcotics to this country than terrorism. So why then not more effectively combat it by stripping drug-related crime suspects of their constitutional rights?
The idea behind limitations of rights in actual war is that there is some existential threat to the country. You either give up some rights temporarily or lose them all permanently. The idea that terrorism rises to this level, that Osama bin Laden is going to incorporate the U.S. into his caliphate or some such, is absurd. Being terrorized into giving up our constitutional rights is letting them win. I'll keep my liberties and take my chances.
Well, Shochu John, that is the question, isn't it? Posner makes his case to distinguish terrorism from the "war on drugs" elsewhere in the book.
I think that we all agree that a few amateurish bombs going off, such as in London, Bali, or even Madrid, pose no "existential threat." Even these might, however, push us toward the sorts of restrictions that Europeans and Israelis have lived with for a long time.
The existential threat is from attacks that have the potential to kill people in the tens of thousands, and in the absence of a lucky hit those would require nuclear weapons. This assumption has, in fact, been the guiding light of the Bush administration's foreign policy since 9/11 -- that the serious threat of terrorism is from nuclear weapons, which require state sponsorship. Hence our aggressive (if perhaps ill-informed) "forward" strategy.
My trouble with the left -- to paint with a broad brush -- is that they are not comfortable with any preemption strategy. If applied domestically, they object that terrorism should be treated like crime -- investigations should follow the "crime," and that we should rely primarily on deterrance (which is, after all, our posture versus criminals). If applied internationally, the left requires not only that we be attacked by a state, but that we be able to prove as much, before we cut off a threat. Either way, the ultimate requirement of the left is that we suffer the attack before we take action (and if you deny this, look at the repeated attacks against us by al Qaeda during the '90s before we were willing to put boots on the ground against them). Because this position is politically unpopular, the left has to claim that terrorism is not such a big deal because it does not pose an "existential" threat. By that standard, neither did Germany and Japan during the 1940s.
Good point TH and let me add another.
Ordinary people will NOT tolerate Israeli-style actions for long. The "American Street" sees Muslims as a seething mass of terrorists, or terrorist apologists, who have one goal:
Convert the world and Americans to Islam.
or Kill them.
The reaction of the American Street to another 9/11 style attack will be:
1. The Government particularly the Press, Dems, McCain-ists, Graham etc. are more concerned with the opinion of folks at Davos, the UN etc than protecting ordinary people.
2. Ordinary people MUST therefore take steps to make themselves safe, namely purging Muslims from America. Local and Federal authorities will be powerless in the aftermath being unwilling to side with "America's enemies" which are now identified clearly as Muslims.
3. Strategic level nuclear responses will follow certainly a nuke strike on a US city; and probably a dirty bomb. Certainly no Mosque will be left standing, or Muslims allowed to stay in the US (regardless of citizenship).
Yes this is a war of civilization, precisely because Islam is both horrificly strong and weak. Strong in that it has bonds across ethnic and social lines, and has a unitary Islamic identity. Weak in that it cannot adapt to modernity and Muslims correctly identify America's very existence as a mortal threat to Islam. You can't have hanging teenage girls, stoning women to death, polygamy, death for apostates, poets, film-makers, writers, "convert or die" sentiments into action, "behead those who insult Islam," etc co-existing with America.
Knight Rider re-runs ALONE (yes I am totally serious) destroy the culture of Islam. Michael Knight treats women with respect, doesn't call them "whores" and has a TALKING CAR!!! Islam by contrast has mud, dirt, and poverty.
The only Muslims who do not hate and wish to destroy the West are those too poor and thus isolated from the world to even be aware of America.
Yeah, treating terrorism like regular crime works. Osama Bin Laden was indicted on November 4th, 1998. Unfortunately, nobody would extradite him to face justice in the US.
Oh well, better luck next time, right? After all, he's just a petty criminal.
If a nation state did what Al Qaeda did on 9/11, we would have declared war. War. Why should we treat terrorists any differently?
"Being terrorized into giving up our constitutional rights is letting them win."
What Contitutional rights have you given up, exactly? You've conspicuously failed to provide a list.
You are correct in pointing out that existential threat is in fact a very high standard, and it should be. Even a terrorist attack that kills tens of thousands is not an existetial threat. The population of the U.S. is about 300 million. About 40,000 people are killed every year from auto accidents. Are we going to claim that every year, we face an existential threat from auto accidents? Let's say the number killed in auto accidents doubled. Would that be an existential threat? I think we'd be startled and want more safety measures taken, but it's not going to be that significant in the day to day lives of Americans. As a matter of fact, in 1955, auto accident fatalities were more than double of what they are now and there were far fewer people driving. It clearly caused a lot of conversation on auto saftey, and soon modest saftey steps began to be taken, but were people running around saying that the automobile was a unique and existential threat?
Now it is possible that terrorists could stage an attack killing tens of thousands tomorrow. It is possible that there will never again be an attack on U.S. soil. Let's pick the middle ground. The 1993 WTC attack kind of fizzled, but it was an attack. The 2001 attack killed 3000. Let's say that there is a terrorist attack killing 3000 every 8 years in perpetuity. That's an average of 375 a year. At current population levels, that's a one in a million chance you will be killed by a terrorist attack in any given year, making you over a hundred times more likely to die in a car accident. Not only do I consider that an entirely acceptable risk in my daily life, but it is NOT AT ALL CLEAR THAT CURBING CIVIL LIBERTIES WILL EVEN APPRECIABLY REDUCE IT.
Clearly, I think that nuclear proliferation poses a lot of great risks to a lot of people, and I agree that every reasonable effort should be undertaken to make sure they stay out of the hands of those who would actually use them. I further agree that it would be beneficial if the adminsitration's foreign policy made actual progress in this area.
I do not consider the argument I'm making here particularly leftist. I consider it far more of a libertarian argument, as I am essentially challenging the notion that civil rights should be curbed for safety on the margins. Contrast this to the far more leftist idea that it is the government's job to make everyone's life safer to the detriment of freedom, which, as you indicate, seems to be the more European approach.
"What Contitutional rights have you given up, exactly? You've conspicuously failed to provide a list."
If you'll note, Posner was specifcally positing that under his suggested legal modifications, a "curtailment of civil liberties," would result. In his opinion, justifiably so. In mine, any such curtailment, generally or specically, is unacceptable.
Conservatives in the EdmundBurke-JohnAdams-RussellKirk line would generally prefer to apply old patterns of Law than to craft new ones out of whole cloth.
But maybe there *is* an old pattern that we could adapt:
The Dread Pirate Bin Laden: How thinking of terrorists as pirates can help win the war on terror.
I think we need to come up with some new terms to describe the protaganists in this debate.
Not all liberals agree with the current dem policy and not all conservatives agree with the administrations policy.
I truly wonder just how necessary it would be to enact measures that curb our liberties if we would just be far more restrictive about the foreigners that we allow to reside or immigrate into the country. We do have our own homegrown lunatics, but I think the major threat comes from Muslims who are allowed to reside or immigrate into this country. Foreigner's have no "right" to reside or immigrate here unless Congress gives them such a right, and whatever they give they can also take away.
It is a great idea that we begin to think of treating terrorism as something different than either crime or war. It has aspects of both. Terrorism is intended to be an attack on the country.
In that sense it is very definitely an act of war. And if terrorist attacks succeed they will only encourage more. The idea of an equalibrium state of terrorist attacks is nonsense.
The problem is that they don't wear uniforms so the possibility of innocent civilians being mistaken for terrorists is very high. Therefore, the accused need the right to exhonorate themselves, unlike prisoners of war.
I don't know the answers, but I am glad we are beginning to look at it intelligently.
There's no reason to even debate these analogies unless you plan to rationalize removing a few liberties. Terrorism is what it is, and what we call it only changes us. I think we've changed too much already. We've come a long way from the founder's "Give me liberty or give me death." These days we beg the government to protect us from gel-bras on airplanes.
Yes, we need the government to secure nuclear materials and chemical and biological reagents. No, we don't need them to argue before the Supreme Court that a US citizen isn't eligible for Habeus Corpus. We need them to infiltrate enemy organizations that want to hurt us, but it's still prudent to require a warrant (from the secret court that approves over 99.9% of them) for domestic wire-taps. The government should be using both carrots and sticks to bring international pressure against terrorism, but the waterboarding and hypothermia chambers are not the kind of sticks that America believes in.
This is the land of the free and the home of the brave. Terrorism is testing us on both counts.
SJ - your argument is spectacularly offensive. One cannot equate a single act which kills thousands which can only be entitled an "attack", from random events which lead to daily loss of life -- accidents. The argument you make is simply nonsensical. Among a sovereign state's first priorities if it is to engender sufficient confidence in its citizens is to provide for security -- or as our constitution reads, "the national defense." That's the social contract. It is simply not acceptable for our government to tolerate without aggressive action the risk of another mass attack like 9/11. Nor is it acceptable, by the way, for a municipal government to allow murder rates to soar without significantly increasing its attention to police activity. That's the deal. Quaint libertarianism be damned.
As to whether piracy or terrorism is an act of war, let me assert what may seem obvious. It depends. 9/11 was an act of war. It was an attack on our territory which exceeded any such attack ever on our soil. The Iranian kid at UNC who drove his SUV into a bunch of people committed a crime. It was not an act of war.
It sort of goes with the pornography standard of you know it when you see it.
Of course the citizenry will willingly accept some curtailment of civil liberties in order to effectively reduce the risk of another significant act of war like 9/11. Today, the citizenry is unlikely to support internment of muslims for instance, but has apparent consensus around things like the SWIFT program, or eavesdropping on suspected AQ calls into the country.
Purist libertarians will philosophically object to any government intervention of any sort -- but that is of course absurdly impractical when one relies on government to provide for the national defense and your country is being attacked. So while I repsect a practical libertarian position on a number of policiies, I find it lacking when it comes to these issues.
To suggest that a mass casualty attack on your country is not an existential threat is to be at once supremely arrogant and shortsighted. Governments that fail to protect their citizens don't last long -- much less forever. Nothing is history has lasted forever, and something had to erode it. Greece, Rome, Egypt, Persia, The Holy Roman Empire, Spain, Britain, the Third Reich, the Soviet Union - they were all mighty powers which fell. So to suggest that the US isn't susceptible to its own combination of external assault and internal decadence represents willful ignorance of history.
I was not attempting to equate accidents with terrorism. I was simply stating that it is silly to term what results in realtively few deaths relative to somethign as common as auto accidents as an existential threat. Simply put, it is not helpful to attempt to make threats loom larger by dealing in hyperbole. This is not a comment that I view large acts of terrorism as somehow morally more acceptable than auto accidents. Nor am I saying we should not protect ourselves from terrorism . What I am simply saying is that limiting civil rights is an EXTREME measure that should ONLY be undertaken in cases where we cannot as a society bear the risk of doing otherwise. I have demonstrated that the risk of doing otherwise is clearly bearable, to the point of being insignificant.
I can only imagine your offense is due to misconstruing my point, be that purposefully or innocently.