November 22, 2004

Good Student, Bad Blawgger

by PG

PG: Why must I go to class? why why why? How much do I want to follow U2 around NYC?
PG's Sister: SKIP CLASS. This is a one-time opportunity.
PG: Even if I skipped class, I can't miss Posner. Posner is like the U2 of law. Well, more like the Alice Cooper; kind of an enfant terrible.

So I did go to Judge Richard Posner's talk on intelligence reform and civil liberties, but was somewhat distracted, and thus the resulting notes are somewhat disjointed. (Short version: he doesn't seem to have changed his mind since he wrote this.) I pre-emptively apologize to Judge Posner for any mischaracterizations or misquotes of his words.

For those interested in judicial attire, he wore a dark charcoal suit (I don’t know suits any better than Heidi does, so all I can say is that it had three buttons on the cuffs and little be-flapped pockets at the bottom of each side) and a pale mustard sweater. The collar of a light blue shirt and the knot of a dark blue tie criss-crossed by gold bands peeked out of the sweater's V-neck.

Posner opened with the changes he proposes for the Federal Bureau of Investigation, which agency he characterizes as a plain clothes police force. He sees a conflict between the criminal investigation and security functions with which the FBI currently is tasked.

In criminal investigation, an agency's job is to wait for a crime to be committed (or even encourage the crime to happen), investigate, collect evidence usable in court, prosecute and hope for conviction. Its success is measured by quantity and quality (i.e. not overturned on appeals) of convictions, and thus it is careful to avoid anything that would spoil prosecution.

A security-focused agency is crime preventive, surveillance-oriented; it may disrupt the group it is watching through misinformation or harassment, can intimidate it through blackmail and is not concerned with gathering evidence scrupulously. Such an agency can report the group to authorities if there’s a case on other grounds, such as telling the INS about a potential group with membership violating immigration law. Occasionally it turn things over to a prosecuting agency. [One question I had about this process was how to separate the information gathered by the security agency from the information that the prosecuting agency would use in court.]

As he does in the article, Posner compared his hypothetical separate domestic intelligence agency with the units performing similar work in other countries. For example, Britain's MI5 has no power of arrest, but has to go through the Scotland Yard branch specializing in threats to national security. He asked, "Why did 9/11 commission not recommend this modest reform, going in the direction of what our peer nations already do, instead going to this rather grandiose proposal for centralization that thus far has struck out in Congress?"

Posner then moved on to the part of his talk that did not appear in the NYTimes article. He said that the American Civil Liberties Union has opposed the 9/11 commission's recommendation on the grounds that this national intelligence director would have both foreign and domestic intelligence access. A barrier is maintained for fear of having CIA-esque tactics used on domestic residents, and because civil libertarians are opposed to having a MI5 clone in the U.S. According to Posner, the general civil liberties position is that there must be no relaxation in the existing protection of civil liberties, even to meet larger threat of terrorism and danger. Civil libertarians ought to be willing to engage empirically with the security advocates.

Posner sees nestling security into the FBI, which is dominated by lawyers and criminal investigators, as a sure handicap. The 9/11 commission report made clear that the greatest failure was by FBI, and he said that is because FBI legalism is hostile to the intelligence role.

He described one of the arguments of civil libertarians as "that if you once start reducing civil liberties to deal with terrorist threat, is that even when threat abates, the liberties will not come back to their former level." Posner called this a "ratchet effect" – every crisis will bring further diminution of civil liberties. He rebutted it with information from Perilous Times, which book embraces the rebound theory that civil liberties return to their pre-crisis level once the danger has passed. Posner claimed that the ratchet effect never has been observed in U.S. history and should not be considered a serious problem.

Drawing some laughter, he called civil liberties "the religion of the liberal left." Posner says there is a religious, dogmatic, strongly emotional and unreasoned aspect to the advocacy for civil liberties, with the Constitution as sacred document, like the Bible, and Constitutional freedoms the articles of the faith.

The Q&A got somewhat repetitive; here's my best recollection of it:

Q: When will the civil liberties be restored, if we don't know when the war on terrorism will be over?

A: Greatest restrictions occur at the outset of the war. The detention of Japanese Americans was authorized in March 1942, when the exact threat of Japanese Americans was unknown and thus most feared. The most serious infringements of civil liberties during Cold War at the beginning, in late 1940s and 1950s. Keep in mind that the Cold War went all the way until the late 1980s, but it was in the '60s that the Supreme Court began reinstating civil liberties.

Most people put much more weight on safety than on civil liberties. The exercise of free speech is of great concern to a minority composed mainly of journalists, professors and students. (Posner added that he was joking about that last comment.) He agreed that the government includes people whose agenda is not limited to fighting terrorism, who will take the opportunity presented by Americans' concern about their safety to usurp more liberties, but he said that civil liberties organizations had actually undercut their own ability to fight back because of their alarmism.

"The ACLU by its extremism has undermined support for its programs. A plaintiff’s lawyer doesn’t take every case that comes in the door, but the ACLU does, Nazis, child molesters, whatever. It doesn’t matter how obnoxious the client or how absurd the position. The civil liberties people are always there to support the extremist view. A more tempered approach would be more effective, because of the belief in civil liberties in the U.S. even among people who don't think of themselves as civil libertarians. To appeal to those people, you need to demonstrate that you don't consider the Bill of Rights to be a suicide pact."

Posner agrees that it would be a mistake to have foreign and domestic intelligence in the same agency; every other non-totalitarian country has made the separation, despite having fewer civil liberties than the U.S. The reason is that the kind of people you want in foreign intelligence, engaged in dangerous activities and working with unsavory people, are not ones you want doing domestic intelligence.

The reason for spinning off the security branch of FBI into its own agency is to make security the single focus, so it will get along better with CIA, which has similar focus. "The FBI regards CIA as outlaws; CIA regards FBI as prissy lawyer spear carriers. In the 1970s, the directors refused to talk to each other."

Posner also asserted that our civil liberties as currently understood have been created by Supreme Court justices. When one student said that curtailing our liberties was un-American, Posner retorted that we didn't have Miranda rights in the 1950s -- were we not American then? [I would have replied that we were less American in the ideal sense than we are now with those rights, but the questioner didn't say that.] Posner said that he had a practical objection to excessive profiling of Muslims and Middle Easterners, as this encourages the enemy to recruit people who don’t fit the obvious profile.

I didn't post about Posner's NYT article when it came out, but I think it's quite solid in most respects. The usual Posnerian tendencies are in there: the preference for competition as more likely to yield good results than would centralization; the contempt for soft measures, in this case the the "hearts and minds" approach to decreasing terrorism; the contrarianism, which here declares that we have no criteria for determining which cities are most vulnerable to terrorist attack and that making the population centers impregnable will lead to hits on Kalamazoo.

The main dispute I had was with this remark: "The Soviet Union operated against the United States and our allies mainly through subversion and sponsored insurgency, and it is not obvious why the apparatus developed to deal with that conduct should be thought maladapted for dealing with our new enemy."

In my poorly-informed opinion, it is maladapted because the Soviet Union and its bloc were state actors. While it operated through subversion and sponsored insurgency (though also direct invasion; see Afghanistan), these did not pose direct threats to civilians on American soil, Joseph McCarthy's fears to the contrary.

Moreover, if we really do view the Cold War as a conflict with the Soviet Union and not with the ideology of communism, then our Cold War apparatus is even more useless in the current conflict, because of the degree to which Al Qaeda has become a symbol, an associational device for "grassroots" terror groups who draw on it for inspiration more than for direct support. While I would not underestimate Al Qaeda-the-organization-under-Bin-Laden's resources, they do not exist in the way that the Soviet Union's did. They are without a government and nation openly protecting them, as the USSR did for Communist insurgents, and they rely on a much greater deal of individual work.

The Soviet Union apparently desired to spread the Communist revolution and its own power over other nation-states -- a goal in which it succeeded to some extent until the collapse of Communism. In contrast, Al Qaeda desires to create Islamic theocracies uninfluenced by modernism or Westernism -- the perfect impossible goal into which a million martyrs may be thrown. With the USSR, we had to get double agents who worked for us inside the Soviet intelligence agencies, track Soviet military installations by satellite, etc. The work to be done with Islamic terrorism is similar in some respects but also very different. The people poring over satellite photos need to watch for small training camps, not missiles. The spies have to be plausible in the role of disaffected young men ready to sacrifice their lives, not as hardened bureaucrats.

This criticism of Posner's desire to parallel to past struggles notwithstanding, I do think he's right that the U.S. is too reluctant to use the available information on dealing with terror groups. Germany, Italy, Britain -- we claim that Europeans can't understand because they didn't go through September 11, but they saw terrorism on their soil long before we did.

There's also domestic organizations that have been watching out for terrorists, which Posner mentioned briefly in his talk, such as the Christian extremists who bomb abortion clinics. At the time of the anthrax attacks, the abortion providers were ignored despite their past experience. Among the many institutional biases that make the U.S. government resistant to change regardless of party leadership, I worry that the Bush Administration is particularly reluctant to find wisdom either abroad or in disfavored domestic organization.

November 22, 2004 02:34 PM | TrackBack
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