I largely agree with Posner’s critique of liberal fanaticism (see below). It brings the notion of civil liberties into disrepute when self-appointed civil libertarians stake out such willfully suicidal positions.
Having said that, I also think Posner presents us with a false dichotomy. The question at issue is not whether Americans need to curtail their preexisting civil rights to be safer. The issue, rather, is whether we should extend civil rights to groups which never had that protection before, to groups which are our sworn enemies, and will use the civil rights we extend to them to as another weapon to use against us.
What imperils our safety is not the preservation of our civil rights, but the unprecedented extension of civil rights to our mortal enemies (i.e. treating unlawful combatants as POWs).
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I said in an earlier post that “religion” should be confined to the theistic religions. That is sensible when the issue is the role of faith-based morality in public policy. But in other contexts a broader sense of the word, to denote the embrace of a system of thought that is not responsive to scientific or pragmatic argu ment and hence is dogmatic, and that occupies a central place in the ideology of its adherents, can be illuminating. I am in creasingly struck by the aptness of the term to the type of civil libertarian who will have no truck with tradeoffs between secu rity and liberty. The choicest recent example of this outlook happens to be found in the opinion by an English judge, Lord Hoffman of the House of Lords, in a decision invalidat ing a post-9/11 British law allowing indefinite detention, with out a hearing, of aliens suspected of terrorism who can't be deported, either because no nation will accept them or only a nation in which they would be exposed to torture or other seri ous harms.
The case is A v. Secretary of State, [2004] UKHL 36, [2004] All ER(D) 271 (Dec. 26, 2004). I am not interested in whether it was decided correctly—one would have to know more about English and international human rights law than I do to opine responsibly on that question—but only in the mind set illustrated by Lord Hoffman’s opinion. Noting that “the power which the Home Secretary seeks to uphold is a power to detain people indefinitely without charge or trial,” he says that “nothing could be more antithetical to the instincts and traditions of the people of the United Kingdom.” This is a pious fraud, ignoring a long history of abuses of civil liberty by British police and security agencies, documented by the English legal historian A. W. Brian Simpson in his book In the Highest Degree Odious and by others. And Hoffman quickly retrenches by adding that the draconian laws enacted to curb the Irish Republican Army, laws similar to those challenged successfully by “A,” were justifiable because “it was reasonable to say that terrorism in Northern Ireland threatened the life of that part of the nation and the territorial integrity of the United King dom as a whole.” He acknowledges that “the threat of...atrocities" similar to the 9/11 attacks on the U.S. “in the United Kingdom is a real one.” But he denies that it is “a threat to the life of the nation….Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qaeda.” Actuallly, there is more doubt that the United Kingdom will survive Islamist terrorism than there was that it would survive the Irish Republican Army, the aims of which were modest compared to those of Osama bin Laden and his associates and which did not aspire to the possession of weapons of mass destruction. Hoffman adds that “terrorist violence, serious as it is, does not threaten our institutions of government.” But considering how fiercely the British authori ties responded to the 9/11 attacks one imagines that their response to a similar or worse attack on Britain would leave little of the institutional framework of civil liberties standing; and Hoffman surely regards that framework as an important part of “our institutions of government.”
He concludes with what has become the first article in the civil liberties common book of prayer: “The real threat to the life of the nation, in the sense of a people living in accor dance with its traditional laws and political values, come not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” What he is saying is that terrorism is not a “real threat,” but the enactments of a democratic legislature (“laws such as these”) are. Terrorism that kills thousands of people (in time, it could be millions) is less menacing than laws that cut back on “traditional laws and politi cal values,” even if the “traditions” are only a few years old. An ordinary sensible person would think that terrorism on the scale enabled by modern technology and inflamed by religio-political fanaticism can do more harm to a nation than a law authorizing the in definite detention of nondeportable aliens suspected of being terrorists. To think otherwise is to be in the grip of a dogma that flaunts its defiance of common sense. Credo quia absudum est.
Civil liberties have real benefits that are entitled to considerable weight whenever measures to increase public safety are proposed. But in Lord Hoffman's opinion, as in similar pronouncements by American civil libertarians, the effort is to place the existing level of civil liberties beyond pragmatic assessment by according them transcendent value compared to which considerations of physical survival are made to seem petty.
http://leiterreports.typepad.com/blog/2004/12/the_religion_of.html
I do not, contrary to some of the comments, either embrace pragmatism as a dogma or (what would be quite inconsistent) consider human life to have absolute value. Remember the old slogan, "Better dead than Red?" If people would prefer to be killed by terrorists than to give up even a tiny smidgeon of their civil liberties (one comment reminds that the grand total of detainees in Lord Hoffman's case was 17 out of an English population of 60 million), I have no argument contra. I just think that almost all Americans would consider that turning back the civil liberties clock to, say, 1960 would be worthwhile if as a result some horrendous terrorist attack was prevented. I am of the same mind. I find it hard to understand the contrary position, but I would not argue against it. I would point out, however, the self-defeating character of civil liberties absolutism. If as a result of such absolutism another major terorrist attacks occurs, civil liberties are pretty sure to go out the window.
I would also argue against those who say that history shows that the threat of terrorism is much less than other threats that we have overcome. That is a misuse of history. History does not contain nuclear bombs the size of oranges, genetically engineered smallpox virus that is vaccine-proof, and an Islamist terrorist (Bin Laden) who visited a cleric in Saudi Arabia to obtain--successfully--the cleric's approval to wage nuclear war against the West.
It is one thing to set civil liberties above life in one's personal utility function; it is another to adopt an ostrich's stance with regard to the present and future threat posed by a technologically sophisticated terrorism.
I was explicit, by the way, in not criticizing the outcome of Lord Hoffman's case. I criticized only his disparagement of the terrorist threat and his astonishing contention that the continued detention of those 17 terrorist suspects has done greater harm to England than the 9/11 attacks did to the United States. He offered this contention as self-evident, citing no evidence that would support it. That kind of dogmatism justifies my speaking of a "religion" of civil liberties.
http://leiterreports.typepad.com/blog/2005/01/response_to_com.html
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