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January 11, 2007



I have been reading Posner's book "Catastrophe: Risk and Response". Over the weekend I had to disagree with his discussion of the value of ones own life as related to the chance of dying, which assumed that no amount of money would compensate a person for a high chance of dying. We know this is not true. For example, Palestinian suicide bombers detonate themselves in return for payments to their families, soldiers throw themselves on grenades, etc. Here he is stating the opposite, that some people place a finite value on their own lives and are not deterred by after-the-fact punishment. I think he admits this elsewhere in his book too. I'm wondering, as I have for the past 100 pages, if the book is going anywhere in particular or if it will end up as a compilation of interesting tidbits and musings on a theme.

It might be a useful check on preventive detention to make the government strictly liable for damages if a person detained incommunicado is not found by an impartial tribunal to be involved in terrorism. Or maybe it would be just a drop on the ocean of federal spending but would make the rest of us feel better.


Thank you for your comment. What gauls me about the “we need to stop thinking about terrorism as a criminal matter” crowd, is that most of them have no idea about an entire system of law that would need to be built up around any alternative area.

The military commissions have largely failed, because of a need, expressed by Ted Olsen and others for “flexibility.” The military has constantly made self-serving remarks about how they are conducted “professionally,” but most of the time, it seems that incompetent people with no training in either law or intelligence are conducting proceedings. (I think lawyers should make the decisions, and intelligence officers should offer expert opinions.) Rather than professional soldiers treating people with dignity we get things the military denies, and then claims are aberrations.

We can’t even get to the question of strict liability because we have left definitions of substantive wrongs so much as to evade ever knowing when the government would be strictly liable. In your example, the government could probably argue that many people have some involvement in terrorism – even a constitutionally protected involvement. (E.g. lawyers defending accused terrorists, people that write op-eds, journalists, religious figures that support “mercy” and such. Heck, even an American official operating in his official capacity that states that it is a bad idea for American soldiers to wear provocative clothing during interrogations could be accused of “associating” with or “support” terrorists. Definitely, by urging more modest clothing, he is giving “comfort” to people, who are terrorists because of some self-evidence definition.)

Nobody – including Posner – wants to really explore this, because nobody wants to know how hysterical people are. Sure, Posner wants to get in his stupid little declarations about the inadequacy of our criminal justice system, but he can’t think anything else through. Would he really be willing to allow the executive to kidnap his future clerks because they “might” be involved in terrorism? He doesn’t say. He doesn’t care. What is important to him is for him to tell people that he thinks that our system of criminal justice is somehow not good for him.


I got to the next chapter of his book and found this: "The legal profession may even be increasing the probability of catastrophe by exaggerating the cost to civil liberties of vigorous responses to threats of terrorism."

Of course if we're going to hold the government liable for mistaken anti-terrorist measures we have to define terrorism in terms that a judge or other impartial tribunal can reliably recognize. Maybe we don't want to use the word terrorism at all. Preventive detention would be justified if there is in fact a conspiracy to kill or seriously injure more than 100 people, the detainee is a member of the conspiracy, and the government reasonably believes that no measure short of isolation is adequate. Whether the mass murder is intended to cause U.S. withdrawl from Saudi Arabia or take some ATF agents out of action is not really important to the cost-benefit analysis. (But the cost of detaining a U.S. citizen may be considered higher.)


JFC, Strangely enough you just described an actual crime, where there is an actual mechanism for detaining people.

Quite frankly, I think that Posner has no idea how much a “civil liberty” is worth. He has never had any of his violated. I bet the guy has never spent a day (or three) in jail without access to a lawyer. (Happens somewhat frequently.) He probably was never hit by a cop. Nor were any of his clerks. This is probably why he accuses lawyers of “exaggerating” the price of liberty.


If I understand the debate, the (alleged) problem is that the criminal justice system's desire for a speedy and public trial conflicts with the necessity to make terrorists quietly disappear for a period. If we must make a compromise, better to have clearer rules than "whatever the President's inherent powers permit." The law has experience dealing with murder, and we can all agree that murder is bad. (As Posner points out in another of his books, murder is bad by definition because any killing that isn't bad is not legally considered murder.)

I skimmed ahead a few pages to see what he says about civil liberties. He says we're a lot better off than we were in the 1950s when his family suffered for its leftist politics. His mother lost her job for refusing to deny that she had been a member of the Communist party. Doubtless he could translate that into dollars if asked. But what's the value of being allowed to use transportation despite ones belief in the Fourth Amendment? In Boston bus and subway riders are subject to suspicionless searches while federal rules require ferry passengers to be considered terrorists the same as air travelers.


Well, I will agree that “clearer” rules, or at least judicially-enforceable rules are better than finding out after the fact that 1/3rd of Harvard 2Ls were kidnapped and tortured for a year, making them miss out on some interviews at firms. But, Posner doesn’t want rules. He wants flexibility, and the people who will lose the most money (that is, the HLS 2Ls) won’t even be able to make a plea that their detention is making them lose money, because they won’t get summer associate positions.

Posner’s example regarding his mother is a little silly. First of all, Posner has spent his whole life sucking up to the government. When he got life tenure he could speak his mind a bit more. Secondly, losing a job, while bad, is a lot different then being detained and tortured. Put in more personal terms: would Posner have a problem with the indefinite detention by the US government of his mother if she was a suspected of being a terrorist for reasons that cannot be disclosed. Would he feel the same way if she committed no overt act, but fit the profile of someone who would later become a terrorist?

As to the Boston subway searches: I don’t really have good information on these things. It is unclear who is conducting them, or if they are really happening. It is also unclear whether one can simply not take the subway if they are asked to submit to a search.

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