A hardheaded look at the costs and benefits of liberty lost.

A hardheaded look at the costs and benefits of liberty lost.

A hardheaded look at the costs and benefits of liberty lost.

The law, lawyers, and the court.
Sept. 8 2006 6:17 PM

Liberty for Sale

Richard Posner takes a hard look at the cost of the administration's policies.

Not a Suicide Pact: The Constitution in a Time of National Emergency.

The Bush administration is marking the fifth anniversary of Sept. 11 this week by launching a charm offensive touting its war on terror. At the less charming end of the spectrum: Donald Rumsfeld's nasty attacks on war critics. More charming: the president's new willingness to empty secret CIA prisons and put the 9/11 ringleaders on trial. But what's missing from all these election-year defenses of the government's actions is the same ingredient that's been missing from the outset: a fair-minded balancing of what's been lost against what's been gained.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Imagine, for instance, if the president had, in his speech this week defending his actions at Guantanamo, confessed that separating real terrorists from unlucky clods is next to impossible; that some detainees may still be there by mistake, but that the risks are worth it. Instead, he offered the preposterous claim that the 450 men who remain there are virtually all dangerous terrorists, even when evidence to the contrary is indisputable.

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Like the administration's old rationalizations for the war on terror, the new ones write off the president's critics as "appeasers" or insist that we are foiling terrorist plots through torture (or, to use the most recent euphemism, "alternative interrogation procedures"). The president claims that his every suspension of the laws of war, the Geneva Conventions, and domestic civil liberties is justified because it is necessary, and, invariably, it is necessary because he says so. There is never even token recognition that any important freedoms are lost; that water-boarding a prisoner is more than just "tough, and … safe, and lawful"; or that programs like the warrantless NSA surveillance of citizens come at a price for everyone.

That is why Judge Richard Posner is such a welcome voice in the national conversation about balancing freedom against security. Posner, the brilliant and prolific federal appeals court judge, is renowned—and not always in a good way—for putting a price tag on everything. But whatever quibbles liberals may have with his law-and-economics approach to anything from rape to unwanted babies, they should celebrate the intellectual rigor he brings to the problem of civil liberties in wartime. In his new book, Not a Suicide Pact: The Constitution in a Time of National Emergency, Judge Posner approaches the wartime civil-liberties problem in precisely the manner the Bush administration will not: with a meticulous, usually dispassionate, weighing of what is gained against what is lost each time the government engages in data-mining, indefinite detentions, or the suppression of free speech.

To achieve such a balancing, Posner must first dispense with the notion of an immutable Constitution, something he does rather faster than the ordinary conservative bear. Indeed, as Instapundit's Glenn Reynolds and his wife recently discovered in an interview, the judge may even be coming close to embracing a "living Constitution." But if one can agree that the boundaries of what's "constitutional" are mutable, one can appreciate Posner's methodology in determining which suspensions of constitutional rights are justifiable in wartime.

To be sure, Posner and I probably differ in terms of the balances struck between liberty and safety. He concludes that broader government surveillance powers, computerized data-mining, zealous deterrence of media leaks, and even "coercive interrogation up to and including torture" are all constitutionally permissible in dealing with an unprecedented new threat. But on his essential project—the notion that fundamentalist terrorism is not quite a crime, and not quite a war; that new systems require meticulous recalibration—his approach is vastly preferable to the all-or-nothing vision articulated by the president and his lawyers.

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What Posner offers is the suggestion that careful balancing of liberties lost against security gained is a better alternative than the current regime that recognizes no cost to freedoms lost and no accountability for security achieved. By virtue of this careful balancing, Posner even criticizes a few Bush administration decisions. He questions, for instance, the decision to suspend the right to habeas corpus of U.S. citizens or foreign terrorists captured in the United States because he deems the cost of indefinite detention to exceed the gain in public safety.

It is this exercise that makes Posner's book so important, as we begin the pre-election analysis of which elements of the president's surveillance, detention, and prosecution strategy have made us safer, and which actions have merely made us less free.

But if we are really to follow Judge Posner's lead; that is, if we are really going to undertake a sober national conversation on the costs and benefits of suspending civil liberties, we need better information on both. Surely Judge Posner would be the first to agree that a good consumer is an informed consumer. And ultimately, the question becomes whether anyone knows enough to engage in such a cost-benefit analysis. For instance, Posner seems to share Bush's assumption that torture is, broadly speaking, worth it, in that it generally extracts information that can disrupt terror plots. He goes on to argue that even in the face of anti-torture statutes, there is a moral obligation in, say, "ticking time bomb" situations, for state actors to exercise a form of "civil disobedience" and ignore those torture statutes. But without fuller information on who is being tortured, and how, and for how long, and how many false confessions are elicited, it's just not clear to me that a cost-benefit assessment is possible.

I am willing to be persuaded, five years later, that provisions of the Patriot Act really do make us safer. But I am not persuaded by assertion alone. How can I balance the security benefits of so-called national-security letters, or the subpoena of my library records, if the government refuses to disclose how that information is used and why? If I am only weighing the curtailment of my civil liberties against the government's bare assertions that such curtailment makes me safer, then there is no real balancing to be done. And if that information is unknowable, am I not just balancing my own subjective sense of freedom against the president's promise that I am safer?

Judge Posner argues persuasively that our judges don't have the institutional capacity to decide these questions of national security. But then, using only the knowledge he has as a judge, he undertakes precisely such a balancing test. Why? Because, as he reveals, smart "generalist" judges are still better-situated to perform the kinds of balancing tests necessary to measure whether Freedom A is worth sacrificing to Security Measure X.

The real power of Posner's project is that he is absolutely willing to stand back and measure whether Guantanamo is really worth it; whether wiretapping is really worth it. And even if we don't know enough to really offer final conclusions, the very promise of such a reckoning is a good start. It's proof that often the best cure for overheated partisan shrieking is a good old-fashioned pickup game of cost-benefit analysis. Now if the Bush administration would just follow suit by framing the debate about freedom and war in terms of painful civil-liberties sacrifices and corresponding gains in security (as opposed to cheap attacks on its critics or grandiose claims of unlimited wartime authority), we might begin to undertake the sort of measured, careful debate about this possibly never-ending war on terror—a debate that is long overdue.