A Stitch in Haste

ACS Blog recently ran a series of four posts in which University of Chicago Law School colleagues Geoffrey R. Stone and Richard Posner debate "Civil Liberties in Wartime." You may recall that I have been chronicling Judge Posner's increasingly bizarre views on warrantless wiretapping, data mining and the "trade-off" between liberty and security in the War on Terror. Posner is becoming increasingly lexicographical in his preference for the latter over the former (i.e., he is approaching a worldview in which, for all intents and purposes, no price, including emasculating the Bill of Rights, is too high to win the War on Terror).

Here are some verbatim excerpts from Posner's posts that illustrate his increasingly fringe position:

--I do not think that "restrictions of liberties should be a last resort."

--Civil liberties are valuable, but their values should be assessed in a practical, hard-headed way, rather than treated with quasi-religious veneration.

--I am not prepared to die at the hands of terrorists in order to defend the Miranda rule ... or the other arabesques that the Supreme Court in the Earl Warren era inscribed on the helpless text of the Constitution.

--Since the American public has already surrendered much of its communicative privacy by its profligate use of analog cell-phones, employers’ email services, and Web services such as Amazon.com and Google which create essentially indelible records of customers’ preferences, including political and sexual, I do not think the public would blanche at giving up a bit more to enable the government to monitor terrorist communications.

--What I think national security requires is a two-stage process. In the first, computer search programs search the world’s entire daily electronic traffic (to the extent feasible) for messages that are suspicious because of names or word clusters in the message, social security numbers or other personal identifying information besides names, the origin or destination of the message, and other suspicious characteristics. These messages, a minute fraction of all those screened by the search programs, would be listened to or read (as the case may be) by (human) intelligence officers.

--Computer screening is not a search, because a computer is not sentient.

I think that can all be summed up nicely in one word: scary.

What Posner, who essentially invented the field of "law and economics," so unforgivably forgets is that much of his position is based on wholly subjective preferences and not on objective standards. Perhaps he is not willing to die to defend the Miranda rule, but what if I am? Who is he, even as credentialed as he is, to insist that no one else demand "quasi-religious veneration" of the Bill of Rights? It cannot be shown, objectively, that his preferences are "right" and anyone else's are "wrong." And given that it is the Bill of Rights and basic civil liberties, should our competing preferences really be subject to a majority vote to see whose views win?

What is "the American way of life" that we are so desperate to defend, if not respect for the Constitution and for civil liberties? One wonders whether Posner, who is so insistent about not dying, would a generation ago have embraced the saying, "Better Red than Dead"?

There are ways, safe and effective ways, to prosecute the War on Terror without turning it into a war on the Constitution. One would have hoped that our preeminent legal scholars would understand this.