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A Debate On Civil Liberties And Terrorism


PoliticsPolicyArs Technica has a really interesting recap of a debate on the clash between protection of civil liberties and the need to fight terrorism. This would have been a fascinating forum to attend. It’s too bad we have to rely on a recap as opposed to being able to watch it online. Fortunately for us, the recap is well done.

What is unfortunate is the insertion of the writer’s agenda. I understand the folks at Ars are generally very left in their thinking. In this case, however, I think it would have been a good service to the reader to merely present the debate and allow the reader to draw conclusions. These are the limitations of not being able to view the proceeding and having to take things second-hand.

What struck me about the presentation of the event was the attack on Posner, and then the reiteration of Posner’s main contention – which seems to be the strongest argument made by any of the three.

Posner stated that the criminal justice system relies on deterrence and incapacitation to address crime. The “deterrence” part stems from the potential criminal’s presumed desire to avoid incarceration at all costs. Clearly, the deterrence value of the threat of incarceration is exactly zero to a suicide bomber, so in that respect the criminal justice system is quite poorly equipped to prevent terrorism. (emphasis mine)

Furthermore, the criminal justice system presumes a crime rate, and works to keep that rate down to manageable levels. In the age of nuclear and biological terrorism, Posner argued, we can’t really afford a “terrorism rate,” even if that rate is really low. All it takes is one spectacular attack to do us in, he reminded the audience.

That is the point that has been made by advocates of the Bush approach since 9/11 and it really is the right frame for the debate. Law enforcement is great if you want to try and limit the number of crimes. You accept the fact that their will be crimes, there will occasionally be crimes on a mass scale, and you should deal with them after the fact.

That approach when terrorists are attempting to kill as many people as possible with as little warning as possible on as grand a scale as possible is just not sufficient. Allowing for an acceptable number of attacks, and an acceptable number of catastrophic attacks (the terrorist equivalent of a mass murder, serial rapist, or burglary ring), does not adequately protect the population.

Instead, this argues for a military approach. We must incapacitate the opposition before they have the ability to inflict losses on us. Once struck, we do not pursue this as a crime, we retaliate as a nation at war. Which we did in Afghanistan.

Most of America understands the approach. The war in Iraq may have taken the focus off of it – which is unfortunate, but whether we as nation are safer with Saddam out of power has been debated ad nauseum, so I will refrain – though the central premise remains correct.

That said, I do, as a libertarian (little L), agree with Geoffrey Stone’s argument (as repeated by Stokes):

Stone’s point was that the American government has a history of mostly successful attempts at putting drastic limits on civil liberties during times of war, and that the American people will temporarily tolerate such limits if they believe them to be necessary for national survival. The problem with the global war on terror (GWOT) is that, unlike previous armed conflicts, there’s no real end in sight. Stone therefore suggested that any civil liberties concessions we make to the government in the name of the GWOT are likely to become permanent.

Stokes portrays the exchange between Posner and Stone as if one had to be right and the other wrong. I disagree. I don’t see any reason you cannot begin from Posner’s (or Bush’s) frame of reference and still heed Stone’s warning.

To believe we are at war does not require the forfeiture of civil liberties. That is the fundamental disagreement between the left and the right.



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Written by Michael Turk