Risk Assessment / Security & Hacktivism

Civil liberties vs. national security: a panel report

Are our civil liberties fundamentally at odds with national security concerns …


Recently, my girlfriend and I shared a romantic evening in true University of Chicago fashion by attending a panel discussion hosted by the Chicago Friends of Israel. The panel was called, "Defending Democracy: Balancing the Fight for Civil Liberties with the Fight Against Terrorism," and the panelists were Richard Posner, Andrew McCarthy, and Geoffrey Stone. Posner and McCarthy were there to argue that civil liberties will have to give way to security concerns if the nation is to survive the threat of nuclear and biological terrorism, while Stone was there to present the opposing view.

The panelists covered quite a bit of ground, from role of the criminal justice system in combating terrorism to the legality of the NSA's wiretapping program, and in the present article I've attempted to represent their remarks as faithfully as my extensive notes and my memory allow. I haven't completely followed the flow of the talks, but have rearranged the order of many of the points and ideas so that they hang together on the page a bit better. Also, in a few places I've rephrased the speakers' points in my own words. The end result is that this article is my own presentation and interpretation of the points and arguments that the speakers made, and not a simple transcript of the talks themselves.

I begin below with a brief introduction to the three panelists, followed by summaries of their remarks. I then give my own responses to some of the issues raised in the panel discussion, and I conclude the article with some big-picture thoughts on the relationship between civil liberties and the survival of America as a self-governing democracy.

I hope you find the panel as thought-provoking and disturbing as I did, and I also hope that more such organized discussions can take place on campuses and in community centers across America. This is a conversation that we all should be having.

The panelists

As a judge on the U.S. Court of Appeals for the Seventh Circuit, Richard Posner is perhaps one of the most prominent legal theorists currently on the federal bench. He's also a senior lecturer at the University of Chicago law school, and the author of a number of books, articles, and op-eds on national security after 9/11. Prior to 9/11, the day on which he had what some would describe as a deathbed conversion to fascism, Posner was America's most prominent libertarian judicial philosopher, a champion of all things antiregulatory and antigovernment. Ars readers may be most familiar with him for his involvement in the Microsoft antitrust case.

Andrew McCarthy is a former federal prosecutor who specialized in counter-terrorism. He was part of the team that brought to justice "the blind sheik" Omar Abdel Rahman, the man behind the 1993 World Trade Center bombing. McCarthy also helped foil the infamous "Day of Terror" plot to simultaneously bomb prominent New York City landmarks. McCarthy is currently a senior fellow at the Foundation for the Defense of Democracies and a frequent contributor to the National Review.

Geoffrey Stone is a professor of constitutional law at the University of Chicago law school. His most recent book is Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism. Stone is also one of fourteen prominent constitutional law scholars who signed a lengthy and detailed letter to Congress outlining the illegality of Bush's circumvention of the FISA statute for the purpose of domestic electronic surveillance.

Andrew C. McCarthy

McCarthy's talk was well-organized, and he drew heavily on his experiences as a federal prosecutor. McCarthy took as his starting point a simple question: is the criminal justice system an effective means of fighting terrorism? He then suggested that the answer depends on the context in which you ask the question.

The due process context

"When lawyers ask the question," said McCarthy, "their focus is on due process"—i.e., on the effectiveness of the criminal justice system in sorting the bad guys from the good guys, so that the bad guys can be brought to justice and the good guys can go free. If this is your frame of reference for asking the question, then McCarthy thinks the answer is easy: we know the criminal justice system is effective against terrorists because it has been effective in the past.

McCarthy characterized his participation in the criminal justice system's fight against terrorism as the part of his life of which he's the most proud. As a first-hand participant in the prosecution of terrorists and in the neutralization of terrorist plots against the US, he has seen the system work time and again. In 29 cases over the course of McCarthy's career, terrorist suspects were brought into custody and due process worked fine for determining their guilt and bringing them to justice. But do those 29 successful prosecutions mean that the criminal justice system as a whole was 100 percent successful in neutralizing terrorists?

The national security context

This brings us to the second, more important frame of reference for asking the question with which McCarthy started his talk, and that's the context of a national security strategy. In this context, McCarthy thinks "the jury is back" on this answer as well: the criminal justice system is not an effective counter-terrorism tool if it is the exclusive tool for combating terrorism.

McCarthy used the law-enforcement phrase "the point of the spear" to describe the institution that shoulders the primary burden for addressing a problem. He then went on to state that, for the eight years prior to 9/11, the criminal justice system was "not just the point, but the whole spear" for attacking terrorism. (Notice the convenient limitation of this criticism to the Clinton years, despite the fact that this has been true since at least the 1970s. McCarthy invoked this eight-year period multiple times in his talk.) "The focus for eight years [prior to 9/11] was on bringing terrorists into the system," said McCarthy. Once in the criminal justice system, the terrorists could be prosecuted and neutralized.

The problem with this prosecution paradigm for combating terrorism is that it's fundamentally reactionary—we primarily prosecute criminals after they've already committed a crime, not before. In the case of a terrorist, the ideal would be the prevention of a catastrophic attack, and not some sort of after-the-fact punishment that, given the modern terrorist's willingness to be "martyred" for the cause, would likely have to be left to a Higher Power anyway.

McCarthy drove home this point by noting that, of the 29 successful terrorism prosecutions in which he participated, almost all of them were after-the-fact responses to an act of terror that had already occurred. The important exception was the spectacular "Day of Terror" plot against the US, which the feds were able to prevent only because they had an inside mole feeding them intelligence. "Nothing is a substitute for having people on the inside," said McCarthy. "That is the only way to stop attacks."

At one point, McCarthy gave some (mostly speculative) figures detailing how many terrorists probably went through training camps in Afghanistan, and reiterated that of those thousands of terrorists we neutralized only 29 over the course of eight years. Thus the criminal justice system's fundamentally reactive approach to counter-terrorism is destined ignore the vast majority of terrorists because they haven't yet committed a prosecutable offense that brings them to the attention of the system.

Too high a threshold

In addition to its reactionary nature, McCarthy highlighted some other features inherent in the design of the criminal justice system that make it unsuitable for counter-terrorism. To summarize his extensive remarks very generally, you could say that the high standards of evidence and procedure set by the criminal justice system and the Constitution are there so that the system errs on the side of the accused. Thus the guilty can some times "get off on a technicality," an aspect of the system that causes law enforcement no end of grief but that is in fact a feature, not a bug.

This feature may be appropriate for criminal prosecutions, in which the "Blackstone ratio" declares that it's "better that ten guilty persons escape than that one innocent suffer," but is this really how we want to handle guys who are guilty of plotting to blow up New York city? The prospect of a terrorist getting off on a technicality is a real one. McCarthy recounted how, in one terrorism case, a failure to give Miranda warnings to terrorist suspects apprehended in Kenya almost cost the government a confession that was a critical part of their successful prosecution. (Based on his description of this incident here and elsewhere, I actually have my doubts about how close McCarthy really came to losing that confession on Miranda grounds. However, I'm quite willing to grant his larger point here, because I think he's right.)

Procedural requirements aren't the only part of the criminal justice system's "guilty" threshold that's set too high. The standards of evidence for criminal prosecution, standards that are mainly tuned to the presumption that a crime has already been committed, make it notoriously hard to bring conspiracy charges. According to McCarthy, "the evidence in these cases [where we prosecute terrorists who are only in the planning stages] is not as major or 'sexy' as what you get after an attack." In other words, you're not going to be able to produce the proverbial smoking gun for the judge if no shot has yet been fired. The standards of evidence for prosecuting terrorists will have to be lower, argues McCarthy, because the standards set by the current criminal justice system are simply too steep for counter-terrorism prosecutors to meet.

McCarthy ended his talk by telling the audience that "we have to grow up and accept the fact that we have to accept some intrusion on our liberties if we're going to save the system that is the guarantor of our liberties."

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